STATE OF WEST VIRGINIA
Report of the Court of Claims 1967-1969
Volume 7
STATE OF WEST
VIRGINIA REPORT OF THE COURT OF CLAIMS
For the period from September 1, 1967, to May 1, 1969.
By
CH:ERYLE
M.
HALL
Clerk
VOLUME VII
(Published by authority. Code 14-2-25).
CONTENTS
HI
TAbLE
OF CONTENTS
Cases (claims) reported, table of
XXXIX
Claims classified according to statute, list of XXVIII
Court of Claims Law VII
Digest of opinions (opinion index) 243
Letter of transmittal V
Opinions of the Court XXXVII
Personnel of the Court IV
Rules of practice and procedure XIX
Terms of Court VI
IV PERSONNEL OF
THE STATE COURT OF CLAIMS
PERSONNEL
OF THE
STATE
COURT OF CLAIMS
HONORABLE HENRY LAKIN DUCKER
Presiding Judge
HONORABLE W. LYLE JONES Judge
HONORABLE A. W. PETROPLUS Judge
CHERYLE M. HALL Court Clerk
CHAUNCEY BROWNING, JR Attorney General
LETTER OF
TRANSMITTAL V
Letter
of Transmittal
To His Excellency
The Honorable Arch Alfred Moore, Jr.
Governor of West Virginia
Sir:
In conformity with the requirements of section twenty- five of the Court of
Claims law, approved March eleventh, one thousand nine hundred sixty-seven, I
have the honor to transmit herewith the report of the State Court of Claims for
the period from September first, one thousand nine hundred sixty-seven to May
first, one thousand nine hundred sixty-nine.
Respectfully submitted,
CHERYLE M. HALL,
Clerk
VI STATE COURT
OF CLAIMS LAW
TERMS
OF COURT
Two regular terms of court are
provided for annually— the second Monday of April and September.
STATE
COURT OF CLAIMS LAW VII
STATE
COURT OF CLAiMS LAW
Passed March 11, 1967
CHAPTER
14 CODE
Artke 2. Cbms
Against the State.
§14-2-1. Purpose.
§14-2-3. Definitions.
§14-2-4. Creation of court of claims;
appointment and terms of judges; vacancies.
§14-2-5. Court clerk and other personnel.
§14-2-6. Terms of court.
§14-2-7. Meeting place of the court.
§14-2-8. Compensation of judges; expenses.
§14-2-9. Oath of office.
§14-2-10. Qualifications of judges.
§14-2-11. Attorney general to represent State.
§14-2-12. General powers of the court.
§14-2-13, Jurisdiction of the court.
§14-2-14. Claims excluded.
§14-2-15. Rules of practice and procedure.
§14-2-16. Regular procedure.
§14-2-17. Shortened procedure.
§ 14-2-18. Advisory determination procedure.
§ 14-2-19. Claims under existing appropriations.
§14-2-20. Claims under special appropriations.
§14-2-21. Periods of limitation made applicable.
§14-2-22. Compulsory process.
§14-2-23. Inclusion of awards in budget.
§14-2-24. Records to be preserved.
§14-2-25. Reports of the court.
§14-2-26. Fraudulent claims,
§ 14-2-27. Conclusiveness of determination.
§14-2-28. Award as condition precedent to appropriation. §14-2-29.
Severability.
§14-2-1. Purpose.
The purpose of this article is to provide a simple and expeditious method for
the consideration of claims against the State that because of the provisions of
section 35, article VI of the Constitution of the State, and of statutory
restrictions, inhibitions or limitations, cannot be determined in the regular
courts of the State; and to provide for proceedings in which the State has a
special interest.
VIII STATE COURT
OF CLAIMS LAW
§14-2-3. Definitions.
For the purpose of this article:
“Court” means the State court of claims established by section four [l4-2-4] of
this article.
“Claim” means a claim authorized to be heard by the court in accordance with
this article.
“Approved claim” means a claim found by the court to be one that should be paid
under the provisions of this article.
“Award” means the amount recommended by the court to be paid in satisfaction of
an approved claim.
“Clerk” means the clerk of the court of claims.
“State agency” means a State department, board, commission, institution, or
other administrative agency of State government: Provided, that a “State
agency” shall not be considered to include county courts, county boards of
education, municipalities, or any other political or local subdivision of the
State regardless of any State aid that might be provided.
§14-2-4. Creation of court of claims;
appointment and terms of judges; vacancies.
The “court of claims” is hereby
created. It shall consist of three judges, to be appointed by the president of
the senate and the speaker of the house of delegates, by and with the advice
and consent of the senate, one of whom shall be appointed presiding judge. Each
appointment to the court shall be made from a list of three qualified nominees
furnished by the board of governors of the West Virginia State bar.
The terms of the judges of this court shall be six years, except that the first
members of the court shall be appointed as follows: One judge for two years,
one judge for four years and one judge for six years. As these appointments
expire, all appointments shall be for six year terms. Not more than two of the
judges shall be of the same political party. An appointment to fill a vacancy
shall be for the unexpired term.
STATE COURT OF
CLAIMS LAW IX
§14-2-5. Court clerk and other
personnel.
The court shall have the authority to
appoint a clerk. The clerk’s salary shall be fixed by the joint committee on
government and finance, and shall be paid out of the regular appropriation for
the court. The clerk shall have custody of all records and proceedings of the
court, shall attend meetings and hearings of the court, shall administer oaths
and affirmations, and shall issue all official summonses, subpoenas, orders,
statements and awards.
The joint committee on government and finance may employ other persons whose
services shall be necessary to the orderly transaction of the business of the
court, and fix their compensation.
§14-2-6. Terms of court.
The court shall hold at least two
regular terms each year, on the second Monday in April and September. So far as
possible, the court shall not adjourn a regular term until all claims then upon
its docket and ready for hearing or other consideration have been disposed of.
Special terms or meetings may be called by the clerk at the request of the
court whenever the number of claims awaiting consideration, or any other
pressing matter of official business, make such a term advisable.
§14-2-7. Meeting place of the court.
The regular meeting place of the court
shall be at the State capitol, and the joint committee on government and
finance shall provide adequate quarters therefor. When deemed advisable, in
order to facilitate the full hearing of claims arising elsewhere in the State,
the court may convene at any county seat.
§14-2-8. Compensation of judges; expenses.
Each judge of the court shall receive seventy-five dollars for each day
actually served, and actual expenses incurred in the performance of his duties.
The number of days served by each judge shall not exceed one hundred in any
fiscal year,
X STATE COURT OF CLAIMS LAW
except by authority of the joint committee on government and finance.
Requisitions for compensation and expenses shall be accompanied by sworn and
itemized statements, which shall be filed with the auditor and preserved as
public records. For the purpose of this section, time served shall include time
spent in the hearing of claims, in the consideration of the record, in the
preparation of opinions, and in necessary travel.
§14-2-9. Oath of office.
Each judge shall before entering upon
the duties of his office, take and subscribe to the oath prescribed by section 5,
article IV of the Constitution of the State. The oath shall be filed with the
clerk.
§14-2-10. Qualifications of judges.
Each judge appointed to the court of
claims shall be an attorney at law, licensed to practice in this State, and•
shall have been so licensed to practice law for a period of not less than ten
years prior to his appointment as judge. A judge shall not be an officer or an
employee of any branch of State government, except in his capacity as a member
of the court and shall receive no other compensation from the State or any of
its political subdivisions. A judge shall not hear or participate in the
consideration of any claim in which he is interested personally, either
directly or indirectly.
§14-2-11.
Attorney general to represent
State.
The attorney general shall represent
the interests of the State in all claims coming before the court.
§142-12. General powers of the court.
The court shall, in accordance with
this article, consider claims which, but for the constitutional immunity of the
State from suit, or for some statutory restrictions, inhibitions or
limitations, could be maintained in the regular courts of the State. No
liability shall be imposed upon the State or any State agency by a
determination of the court of claims approving a claim and recommending an
award, unless the claim is (1) made under an existing appropriation, in accord-
STATE COURT OF
CLAIMS LAW XI
ance
with section nineteen [14249j of this
article, or (2) a
claim under a special appropriation, as
provided in section twenty [l4-2-2O] of
this article. The court shall consider claims in accordance with the provisions
of this article.
Except as is otherwise provided in this article, a claim shall be instituted by
the filing of notice wth the clerk. Each claim shall be considered by the court
and if, after consideration, the court finds that a claim is just and proper,
it shall so determine and shall file with the clerk a brief statement of its
reasons. A claim so filed shall be an approved claim. The court shall also
determine the amount that should be paid to the claimant, and shall itemize
this amount as an award, with the reasons therefor, in its statement filed with
the clerk. In determining the amount of a claim, interest shall not be allowed
unless the claim is based upon a contract which specifically provides for the
payment of interest.
§142..13, Jurisdiction of the court.
The jurisdiction of the court, except for the claims ex cluded by section
fourteen [l42-l4j, shall extend to the following matters:
1, Claims and demands, liquidated and unliquidated, ex contractu and ex
delicto, against the State or any of its agencies, which the State as a
sovereign commonwealth should in equity and good conscience discharge and pay.
2. Claims and demands, liquidated and unliquidated, ex contractu and ex
delicto, which may be asserted in the nature of setoff or counterclaim on the
part of the State or any State agency.
3. The legal or equitable status, or both, of any claim refc’rred to the court
by the head of a State agency for an advisory determination.
§14..244, Claims excluded.
The jurisdiction of the court shall not extend to any claim:
1. For loss, damage, or destruction of property or for injury or death incurred
by a member of the militia or national guard when in the service of the State.
XII STATE COURT
OF CLAIMS LAW
2. For a disability or death benefit under chapter twenty- three {23-l-1 et
seq.] of this Code.
3. For unemployment compensation under chapter twenty- one-A [2lA4-l et seq.]
of this Code.
4. For relief or public assistance under chapter nine [9-1-1 et seq.] of this
Code.
5. With respect to which a proceeding may be maintained against the State, by
or on behalf of the claimant in the courts of the State.
§14-2-15. Rules of practice and
procedure.
The court shall adopt and may from
time to time amend rules of procedure, in accordance with the provisions of
this article, governing proceedings before the court. Rules shall be designed
to assure a simple, expeditious and inexpensive consideration of claims. Rules
shall permit a claimant to appear in his own behalf or be represented by
counsel.
Under its rules, the court shall not be bound by the usual common law or
statutory rules of evidence. The court may accept and weigh, in accordance with
its evidential value, any information that will assist the court in determining
the factual basis of a claim.
§14-2-16. Regular procelure.
The regular procedure for the
consideration of claims shall be substantially as follows:
1. The claimant shall give notice to the clerk that he desires to maintain a
claim. Notice shall be in writing and shall be in sufficient detail to identify
the claimant, the circumstances giving rise to the claim, and the State agency
concerned if any. The claimant shall not otherwise be held to any formal
requirement of notice.
2. The clerk shall transmit a copy of the notice to the State agency concerned.
The State agency may deny the claim, or may request a postponement of
proceedings to permit negotiations with the claimant. If the court finds that a
claim is
STATE COURT OF
CLAIMS LAW XIII
prima fade within its jurisdiction, it shall order the claim to be placed upon
its regular docket for hearing.
3. During the period of negotiations and pending hearing, the State agency,
represented by the attorney general, shall, if possible, reach an agreement
with the claimant regarding the facts upon which the claim is based so as to
avoid the necessity for the introduction of evidence at the hearing. If the
parties are unable to agree upon the facts an attempt shall be made to
stipulate the questions of fact in issue.
4. The court shall so conduct the hearing as to disclose all material facts and
issues of liability and may examine or cross-examine witnesses. The court may
call witnesses or require evidence not produced by the parties; may stipulate
the questions to be argued by the parties; and may continue the hearing until
some subsequent time to permit a more complete presentation of the claim.
5. After the close of the hearing the court shall consider the claim and shall
conclude its determination, if possible, within thirty days.
§14-2-17. Shortened procedure.
The shortened procedure authorized by this section shall apply only to a claim
possessing all of the following characteristics:
1. The claim does not arise under an appropriation for the current fiscal year.
2. The State agency concerned concurs in the claim.
3. The amount claimed does not exceed one thousand dollars.
4. The claim has been approved by the attorney general as one that, in view of
the purposes of this article, should be paid.
The State agency concerned shall prepare the record of the claim consisting of
all papers, stipulations and evidential documents required by the rules of the
court and file the same with the clerk. The court shall consider the claim
informally upon the record submitted. If the court determines that the claim
should be entered as an approved claim and an award made,
XIV STATE
COURT OF CLAIMS LAW
it shall so order and shall file its statement with the clerk. If the
court finds that the record is inadequate, or that the claim should not be
paid, it shall reject the claim. The rejection of a claim under this section
shall not bar its resubmission under the regular procedure.
§14-2-18. Advisory determination
procedure.
The governor or the head of a State
agency may refer to the court for an advisory determination the question of the
legal or equitable status, or both, of a claim against the State or a State
agency. This procedure shall apply only to such claims as are within the
jurisdiction of the court. The procedure shall be substantially as follows:
1, There shall be filed with the clerk, the record of the claim including a
full statement of the facts, the contentions of the claimant, and such other
materials as the rules of the court may require. The record shall submit
specific questions for the court’s consideration.
2. The clerk shall examine the record submitted and if he finds that it is
adequate under the rules, he shall place the claim on a special docket. If he
finds the record inadequate, he shall refer it back to the officer submitting it
with the request that the necessary additions or changes be made.
3. When a claim is reached on the special docket, the court shall prepare a
brief opinion for the information and guidance of the officer. The claim shall
be considered informally and without hearing. A claimant shall not be entitled
to appear in connection with the consideration of the claim.
4. The opinion shall be filed with the clerk. A copy shall be transmitted to
the officer who referred the claim.
An advisory determination shall not bar the subsequent consideration of the
same claim if properly submitted by, or on behalf of, the claimant. Such
subsequent consideration, if undertaken, shall be de novo.
§14-2-19. Claims under existing appropriations.
A claim arising under an appropriation made by the legislature during the
fiscal year to which the appropriation applies,
STATE COURT OF
CLAIMS LAW XV
and falling within the jurisdiction of the court, may be submitted by:
1, A claimant whose claim has been rejected by the State agency concerned or by
the State auditor.
2. The head of the State agency concerned in oraer to obtain a determination of
the matters in issue.
3. The State auditor in order to obtain a full hearing and consideration of the
merits.
The regular procedure, so far as applicable, shall govern the consideration of
the claim by the court. If the court finds that the claimant should be paid, it
shall certify the approved claim and award to the head of the appropriate State
agency, the State auditor, and to the governor. The governor may thereupon
instruct the auditor to issue his warrant in payment of the award and to charge
the amount thereof to the proper appropriation. The auditor shall forthwith
notify the State agency that the claim has been paid. Such an expenditure shall
not be subject to furtner review by the auditor upon any matter determined and
certified by the court.
§14-2..20. Claims under special
appropriations.
Whenever the legislature makes an
appropriation for the payment of claims against the State, then accrued or
arising during the ensuing fiscal year, the determination of claims and the
payment thereof may be made in accordance with this section. However, this
section shall apply only if the legislature in making its appropriation
specifically so provides.
The claim shall be considered and determined by the regular or shortened
procedure, as the case may be, and the amount of the award snail be fixed by
the court. The clerk shall certify each approved claim and award, and requisition
relating thereto, to the auditor. The auditor thereupon shall issue his warrant
to the treasurer in favor of the claimant. The auditor shall issue his warrant
without further examination or review of the claim except for the question of a
sufficient unexpended balance in the appropriation.
XVIII STATE COURT
OF CLAIMS LAW
§14-2-26. Fraudulent claims.
A person who knowingly and wilfully
presents or attempts to present a false or fraudulent claim, or a State officer
or employee who knowingly and wilfully participates or assists in the
preparation or presentation of a false or fraudulent claim, shall be guilty of
a misdemeanor. A person convicted, in a court of competent jurisdiction, of
violation of this section shall be fined not more than one thousand dollars or
imprisoned for not more than one year, or both, in the discretion of such
court. If the convicted person is a State officer or employee, he shall, in
addition, forfeit his office or position of employment, as the case may be.
§14.2-27. Conclusiveness of
determination,
Any final deternunation against the
claimant on any claim presented as provided in this article shall forever bar
any further claim in the court arising out of the rejected claim.
§14-2-28. Award as condition precedent
to appropriation.
It is the policy of the legislature to
make no appropriation to pay any claims against the State, cognizable by the
court, unless the claim has first been passed upon by the court.
§14-2-29. Severability.
If any provision of this article or
the application thereof to any person or circumstance be held invalid, such
invalidity shall not affect other provisions or applications of the article
which can be given effect without the invalid provision or application, and to
this end the provisions of this article are declared to be severable.
RULES OF
PRACTICE AND PROCEDURE XIX
Rules
of Practice and
Procedure
OF THE
STATE
COURT OF CLAIMS
(Adopted by the Court
September 11, 1967.)
XX RULES OF
PRACTICE AND PROCEDURE
TABLE
OF RULES
Rules of Practice and Procedure
RULE
1. Clerk, Custodian of Papers, etc.
2. Filing Papers.
3. Records.
4. Form of Claims.
5. Copy of Notice of Claims to Attorney General and State Agency.
6. Preparation of Hearing Docket.
7. Proof and Rules Governing Procedure.
8. Appearances.
9. Briefs.
10. Continuances: Dismissal For Failure To Prosecute.
11. Original Papers Not To Be Withdrawn: Exceptions.
12. Withdrawal of Claim.
13. Witnesses.
14. Depositions.
15. Re-Hearings.
16. Records of Shortened Procedure Claims Submitted By State Agencies.
RULES OF
PRACTICE AND PROCEDURE XXI
Rules
of Practice and Procedure
OF THE
Court
of Claims
State
of West Virginia
RULE 1. CLERK, CUSTODIAN OF
PAPERS, ETC.
The Clerk shall be responsible for
all papers and claims filed in his office; and will be required to properly
file, in an index for that purpose, any paper, pleading, document, or other
writing filed in connection with any claim. The Clerk shall also properly
endorse all such papers and claims, showing the title of the claim, the number
of the same, and such other data as may be necessary to properly connect and
identify the document, writing, or claim.
RULE 2. FILING PAPERS.
(a) Communications addressed to the Court or Clerk and all notices,
petitions, answers and other pleadings, all reports, documents received or
filed in the office kept by the Clerk of this Court, shall be endorsed by him
showing the date of the receipt or filing thereof.
(b) The Clerk, upon receipt of a notice of a claim, shall enter of record in
the docket book indexed and kept for that purpose, the name of the claimant,
whose name shall be used as the title of the case, and a case number shall be
assigned accordingly.
RULE 3. RECORDS.
The Clerk shall keep the following record books, suitably indexed in the
names of claimants and other subject matter:
(a) Order Book, in which shall be recorded at large, on the day of their
filing, all orders made by the Court in each case or proceeding.
(b) Docket Book, in which shall be entered each case or claim made and filed,
with a file or case number corresponding to the number of the case, together
with brief chronological notations of the proceedings had in each case.
XXII RULES OF
PRACTICE AND PROCEDURE
(c) Financial Ledger, in which shall be entered chronologically, all
administrative expenditures of the Court under suitable classifications.
RULE 4. FORM OF CLAIMS.
Notice in writing of each claim must
be filed with the Clerk of the Court. The notice shall be in sufficient detail
to identify the claimant, the circumstances giving rise to the claim, and the
state agency concerned, if any. The Court reserves the right to require further
information before hearing, when, in its judgment, justice and equity may
require. It is recommended that notice of claims be furnished in triplicate. A
suggested form of notice of a claim may be obtained from the Clerk.
RULE 5. COPY OF NOTICE OF CLAIMS TO
ATTORNEY GENERAL AND STATE AGENCY.
Upon receipt of a notice of claim to
be considered by the Court, the Clerk shall forthwith transmit a copy of the
notice to the State Agency concerned, if any, and a copy thereof to the office
of the Attorney General of the State, and the Clerk shall make a note of the
time of such delivery.
RULE 6. PREPARATION OF HEARING DOCKET.
On and after the date of adoption of
these rules by the Court, the Clerk shall prepare fifteen days previous to the
regular terms of Court a docket listing all claims that are ready for hearings
by the Court, and showing the respective dates, as fixed by the Court for the
hearings thereof. The Court reserves the right to add to, rearrange or change
said docket when in its judgment such addition, rearrangement or change would
expedite the work of the term. Each claimant or his counsel of record and the
Attorney General shall be notified as to the date, time, and place of the
hearing.
RULE 7. PROOF AND
RULES GOVERNING PROCEDURE.
(a) Claims asserted against the State,
including all the allegations in a notice of claim, are treated as denied, and
must be established by the claimant with satisfactory proof,
RULES OF
PRACTICE AND PROCEDURE XXIII
or proper stipulation as hereinafter provided before an award can be made.
(b) The Court shall not be bound by the usual common law or statutory rules of
evidence. The Court may accept and weigh, in accordance with its evidential
value, any information that will assist the Court in determining the factual
basis of the ci aim.
(c) The Attorney General shall within twenty days after a copy of the notice
has been furnished his office file with the Clerk a notice in writing, either
denying the claim, requesting postponement of proceedings to permit
negotiations with the claimant, or otherwise setting forth reasons for further
investigation of the claim, and furnish the claimant or his counsel of record a
copy thereof. Otherwise, after said twenty-day period, the Court may order the
claim placed upon its regular docket for hearing.
frl) It shall he the duty of the claimant or his counsel in claims under the
regular procedure to negotiate with the Office of the Attorney General so that
the claimant and the State Agency and the Attorney General may be ready at the
beginning of the hearing of a claim to read, if reduced to writing, or to
dictate orally, if not reduced to writing, into the record such stipulations,
if any, as the parties may have been able to agree upon.
(e) Where there is a controversy between a claimant and any State Agency, the
Court may require each party to reduce the facts to writing, and if the parties
are not in agreement as to the facts, the Court may stipulate the questions of
fact in issue and require written answers to the said stipulated queJions.
RULE 8. APPEARANCES.
Any claimant may appear in his own behalf or have his claim presented by
counsel, duly admitted as such to practice law in the State of West Virginia.
RULE 9. BRIEFS.
(a) Claimants or their counsel, and the Attorney General. may file with the
Court for its consideration a brief on any
XXIV RULES OF
PRACTICE AND PROCEDURE
question involved, provided a copy of said brief is also presented to and
furnished the opposing party or counsel. Reply briefs shall be filed within
fifteen days.
(b) All briefs filed with, and for the use of, the Court shall be in
quadruplicate—original and three copies. As soon as any brief is received by
the Clerk he shall file the original in the Court file and deliver the three
copies, one each, to the Judges of the Court.
RULE 10. CONTINUANCES: DISMISSAL FOR
FAILURE TO PROSECUTE.
(a) After claims have been set for
hearing, continuances are looked upon by the Court with disfavor, but may be
allowed when good cause is shown.
(b) A party desiring a continuance should file a motion showing good cause
therefor at the earliest possible date.
(c) Whenever any claim has been docketed for hearing for three regular terms of
Court at which the claim might have been prosecuted, and the State shall have
been ready to proceed with the trial thereof, the Court may, upon its own
motion or that of the State, dismiss the claim unless good cause appear or be
shown by the claimant why such claim has not been prosecuted.
(d) Whenever a claimant shall fail to appear and prosecute his claim on the day
set for hearing and shall not have communicated with the Clerk prior thereto,
advising of his inability to attend and the reason therefor, and if it further
appear that the claimant or his counsel had sufficient notice of the docketing
of the claim for hearing, the Court may, upon its own motion or that of the State,
dismiss the claim.
(e) Within the discretion of the Court, no order dismissing a claim under
either of the two preceding sections of this rule shall be vacated nor the
hearing of such claim be reopened except by a notice in writing filed not later
than the end of the next regular term of Court, supported by affidavits showing
sufficient reason why the order dismissing such claim should be vacated, the
claim reinstated and the trial thereof permitted.
RULES OF PRACTICE
AND PROCEDURE XXV
RULE 11. ORIGINAL PAPERS NOT TO BE
WITHDRAWN:
EXCEPTIONS.
No original paper in any case shall be
withdrawn from the Court files except upon special order of the Court or one of
the Judges thereof in vacation. When an official of a State Department is
testifying from an original record of his department, a certified copy of the
original record of such department may be filed in the place and stead of the
original.
RULE 12. WITHDRAWAL OF CLAIM.
(a) Any claimant may withdraw his
claim. Should the claimant later refile the claim, the Court shall consider its
former status, such as previous continuances and any other matter affecting its
standing, and may re-docket or refuse to re-docket the claim as in its
judgment, justice and equity may require under the circumstances.
(b) Any department or state agency, having filed a claim for the Court’s
consideration, under either the a’visory determination procedure or the
shortened procedure provision of the Court Act, may withdraw the claim without
prejudice to the right of the claimant involved to file the claim under the
regular procedure.
RULE 13. WITNESSES.
(a) For the purpose of convenience and
in order that proper records may be preserved, claimants and State Departments
desiring to have subpoenas for witnesses shall file with the Clerk a memorandum
in writing giving the style and number of the claim and setting forth the names
of such witnesses, and thereupon such subpoenas shall be issued and delivered
to the person calling therefor or mailed to the person designated.
(b) Request for subpoenas for witnesses should be furnished to the Clerk well
in advance of the hearing date so that such subpoenas may be issued in ample
time before the hearing.
(c) The payment of witness fees, and mileage where transportation is not furnished
to any witness subpoenaed by or
XXVI RULES OF
PRACTICE AND PROCEDURE
at the instance of either the claimant or the respondent state agency, shall be
the responsibility of the party by whom or at whose instance such witness is
subpoenaed.
RULE 14. DEPOSITIONS.
(a) Depositions to be read as part of
the record in any claim under the regular procedure shall not he taken,
recognized or allowed except in accordance with this RuJe of the Court.
(b) Before any deposition shall be taken, permission shall be obtained from the
Court if in session, or from the Presiding Judge or one of the other regular
Judges in the vacation of the Court. Application for such permission shall be
made in writing and show good and sufficient reason why the designated witness,
whose deposition is sought to be taken, cannot appear and testify before the
Court when such claim shall come up in regular order for hearing and
investigation.
(c) If such permission is granted to take the deposition of any designated
witness, reasonable notice of the time and place shall be given the opposite
party or counsel, and the party taking such deposition shall pay the costs
thereof and file an original and three copies of such deposition with the
Court. Extra copies of exhibits will not be required; however, it is suggested
that where exhibits are not too lengthy and are of such a nature as to permit
it, they should be read into the deposition.
RULE 15. RE-HEARINGS.
A re-hearing shall not be allowed
except where good cause is shown. A motion for re-hearing may be entertained
and considered ex parte, unless the Court otherwise directs, upon the petition
and brief filed by the party seeking the re-hearing. Such petition and brief
shall be filed within thirty days after notice of the Court’s determination of
the claim unless good cause be shown why the time should be extended.
RULE 16. RECORDS OF SHORTENED
PROCEDURE CLAIMS SUBMITTED BY STATE AGENCIES.
When a claim is submitted under the
provisions of Chapter 14, Article 2, Paragraph 17 of the Code of West Virginia,
con-
RULES OF PRACTICE
AND PROCEDURE XXVII
curred in by the head of the department and approved for payment by the
Attorney General, the record thereof, in addition to copies of correspondence,
bills, invoices, photographs, sketches or other exhibits, should contain a
full, clear and accurate statement, in narrative form, of the facts upon which
the claim is based. The facts in such record among other things which may be
peculiar to the particular claim, should show as definitely as possible that:
(a) The claimant did not through neglect, default or lack of reasonable care,
cause the damage of which he complains. It should appear he was innocent and
without fault in the matter.
(b) The department, by or through neglect, default or the failure to use
reasonable care under the circumstances caused the damage to claimant, so that
the State in justice and equity should be held liable.
(c) The amount of the claim should be itemized and supported by a paid invoice,
or other report itemizing the damages, and vouched for by the head of the
department as to correctness and reasonableness.
C),
0
0
0
cm
z
|
REPORT OF THE COURT OF CLAIMS |
< 8 |
|||
|
|
|
Amount Amount |
Date of |
|
|
No. Name of
Claimant Name of Respondent |
Claimed
Awarded |
Determination January 17, 1968 |
||
|
D-30 |
Armco Steel Corporation State Road Commission |
11,697.34 11,697.34 |
January 17, 1968 |
|
|
C-37 |
Asbestos and Insulating Department of Welfare Company |
11,490.38 11,490.38 |
February 15, 1968 |
|
|
C-37 |
B & N Plumbing and Heating Department of Welfare |
31,875.38 31,875.38 |
February 15, 1968 |
|
|
B-393 B-398 |
Company |
4,400.00
4,400.00 |
January 17, 1968 December 27, 1967 |
|
|
B-192 |
Bowman, Irving, etc. and Fred Department of Commerce 23,582.15 23,582.15 Wiedersum etc. |
December 27, 1967 |
||
|
B-391 |
Brown, Ott State Road Commission 68.25 68.25 |
December 12, 1967 |
||
|
B-392 |
Buchanan, Emmett State Road Commission 102.40 102.40 |
December 27, 197 |
||
|
B-280 |
Buckeye Union Casualty Co. State Road Commission 69,023.30 39,775.00 December 27, 1967 and Melvin O’Brien |
|||
|
B-387 B-297 |
Calhoun, Sam D.
State Road Commission 30.90 30.90 January 17, 1968 |
|||
|
B-397 B-385 |
Clark, James D.
State Road Commission 74.62 70.15 January 15, 1968 |
|||
|
B-384 |
Collins, Russell State Road Commission 453.10 453.10 January 17, 1968 |
|||
|
B-379 |
Dotson, Clarence E. State Road Commission 87.55 87.55 December 12, 1967 |
|||
|
C-43 |
Floor Fashions,
Inc. d/b/a Department of Welfare 7,925.61 7,925.61 February 5, 1968 |
|||
|
B-320(a) |
Fowler, Hubert
State Road Commission 859.00 859.00 January 17, 1968 |
|||
REPORT OF THE COURT OF CLAIMS (Continued)
(1) Approved claims and awards referred to the Legislature, 1968, for the period September 1, 1967 to April 1, 1968:
No.
C-39
B-377
B-331
B-292
D-34
C-37
B-389
C-37
B-338
B-388
C-37
C-37
D-43
B-320 (a)
B-374
B-366
B-390
C-37
C-37
B-396
C-37
B-91
B-394
Name of
Claimant
Hunt Electric Company
Hurley, Mary Jane
Kenton Meadows Co., Inc.
C. J. Langenfelder and Son, Inc.
McElwee, Charles R.
Meeker, Bernard 0.
Miller, Harry L.
Moore, E. E.
Mountain State Construction Company
Neeley, Marshall
O’Dell, R. W.
R. B. Wyatt and Sons, Inc.
Remington Rand Office Systems Division, Sperry Rand Corporation
Robbins, John
Sargis, Alice and Shual
Southern Coals Corp.
State Farm Mutual Automobile Insurance Company
Sturgeon, Worth
Swain, Elbert A.
Tenny, Delos
W. A. Abbitt Co.
Warner, Roy L.
Wood, John L.
Amount Amount
Name of Respondent Claimed Awarded
Department of Welfare
State Road Commission
State Road Commission
State Road Commission
Department of Welfare
Department of Welfare
State Road Commission
Department of Welfare
State Road Commission
State Road Commission
Department of Welfare
Department of Welfare
Department of Welfare
State Road Commission
Adjutant General
State Road Commission
State Road Commission
Department of Welfare
Department of Welfare
State Road Commission
Department of Welfare
State Road Commission
State Road Commission
Date of
Determination
February 5, 1968
January 17, 1968
December 12, 1967
December 27, 1967
December 27, 1967
February 15, 1968
January 17, 1968
February 15, 1968
December 27, 1967
January 17, 1968
February 15, 1968
February 15, 1968
January 31, 1968
January 17, 1968
January 17, 1968
October 30, 1967
January 17, 1968
February 15, 1968
February 15, 1968
January 17, 1968
February 15, 1968
December 27, 1967
December 12, 1967
43,204.18
800.00
54,384.28
296,597.12
2,700.00
7,458.60
36.00
1,190.12
67,681.89
125.73
2,062.14
2,575.00
13,245.37
759.00
12,400.00
14,020.17
24.81
11,34486
2,196.00
225.00
87,903.78
640.16
1,450.00
34,198.83
75.00
28,535.00
269,116.08
2,700.00
7,458.60
36.00
1,190.12
67,288.99
125.73
2,062.14
2,575.00
13,245.37
759.00
3,277.11
3,099.67
24.81
11,344.86
2,196.00
225.00
87,903.78
640.16
1,450.00
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D-65
D-36
D-95
C-21
C-26
D-68’
D-352
D-lO (a)
D-10(b)
D-11
D-12
D-14
C-27
C-28
D-15
D-78
D-6
D-105
D-33
D-86
C-7
D-82
C-2
Akers, Everett
Lee
Albert, Acie W.
Baker & Hickey Co.
Beasley, Henry A.
Blankenship, Walter L.
Borbely, Leslie
Byrd, Norma Jean
C. A. Robrecht Co.
C. A. Robrecht Co.
C. A. Robrecht Co.
C. A. Robrecht Co.
C. A. Robrecht Co.
Central Asphalt Paving Company
Central Asphalt Paving Company
Chamberlain, Warren and Justine
Chapman, Peter
Charleston Concrete Floor Company
Charleston Construction, Inc.
Chatfield, Katharine
Chesapeake & Ohio Railway Company
City of Morgantown
Columbia Ribbon and Manufacturing Co.
Curry, William and Mary E.
Name of Respondent
State Road Commission
State Road Commission
State Road Commission
State Road Commission
State Road Commission
Dept. of Mental Health
Dept. of Mental Health
Department of Education
Department of Education
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
State Road Commission
State Road Commission State Road Commission
State Road Commission State Road Commission
State Road Commission
State Road Commission
State Road Commission
Adjutant General Department of Finance
and Administration State Road Commission
Amount Claimed
Date of
Determination
July 2, 1968
July 9, 1968
January 27, 1969
July 2, 1968
April 24, 1968
June 12, 1968
June 12, 1968
July 9, 1968
July 9, 1968
May 24, 1968
July 12, 1968
July 2, 1968
July 2, 1968
July 2, 1968
July 2, 1968
October 16, 1968
June 5, 1968
January 27, 1969
July 2, 1968
November 8, 1968
May 16, 1968
October 16, 1968
June 5, 1968
No. I Name of Claimant
REPORT OF THE COURT OF CLAIMS (Continued)
(1-b) Approved claims and awards
referred to the Leggislature, 1969, for the period April 1, 1968 to May 1,
1969:
Amount Awarded
S
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02
02
C-)
C
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02
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Ci)
$ 1,000.00
88.07
12,320.28
700.00
68.61
600.00
500.00
1,720.79
605.23
170.78
202.72
95.94
47,777.27
13,363.16
110.16
73.24
24,680.35
2,412.19
247.07
212.01
180.00
94.94
2,275.56
25.00
88.07
11,151.12
100.00
68.61
600.00
500.00
1,687.74
646.41
170.78
135.96
83.75
16,483.75
10,600.00
110,16
73.24
9,713.78
1,245.95
247.07
212.01
150.00
94.94
2,106.71
REPORT OF THE COURT OF CLAIMS (Confinued)
(1-b) Approved claims and awards referred to the Legislature, 1969, for the period April 1, 1968 to May 1, 1969:
No.
D-85
D-l31
D-62
D-643
D-29
D-20
D-9
C-13
D-7
D-136
D-32
D-109
C-16
D- 18
D-42
D-143
D-50
D-38
C-b
D-73
D-135
D-103
DeBolt, Mary Ann
Deskins, Thornton
Dotson, C. L.
Earies, Louis A.
Elmore, Clarence C.
Eureka Pipe Line Co.
Federal Insurance Company and Raymond T. Dalton
Doran Frame, d/b/a
Doran Frame Electrical Contractors
Gano, W. E., Sr.
Gordon, Richard
Greene, J. E.
Hass, J. I.
Haynes Construction Company
Haynes, J. C.
International Business Machines Corporation
Jordon, Lawrence V.
Keith, Kenneth G.
Kucera, Charles J. and Josephine Ann
Laird Office Equipment Company
Lewis, Mr. and Mrs. James P.
Lopez, Vincent
MeKinney, Shirley
Name of
Respondent
Dept. of Mental Health
State Road Commission
State Road Commission
Dept. of Mental Health
Alcohol Beverage Control Commission
Dept. of Natural Resources State Road Commission
State Road Commission
State Road Commission
State Road Commission
State Road Commissiob
State Road Commission
State Road Commission
State Road Commission
Department of Finance and Administration
Department of Education
State Road Commission
State Road Commission
State Road Commission
Amount Amount
Claimed Awarded
177.42
100.00
23 00
500.00
803.79
6,741.99
677.33
3,801.73
Date of
Determination
October 16, 1968
January 28, 1969
September 9, 1968
June 12, 1968
May 24, 1968
May 24, 1968
May 16, 1968
May 16, 1968
May 16, 1968
January 28, 1969
September 9, 1968
February 24, 1969
October 16, 1968
January 27, 1969
July 2, 1968
January 28, 1969
July 2, 1968
November 8, 1968
May 15, 1968
December 9, 1968
January 28, 1969
January 27, 1969
Name of Claimant
400,00
200.00
23.00
500.00
803.79
6,741.99
677.33
3,801.73
16.48
646.77
6,317.90
94,272.93
283,825.56
7,053.59
7,882.03
272.14
52.53
75.00
1,026,54
177.35
804.09
94,35
(1
2
C12
C)
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0
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0
C)
C12
16,48
646.77
6,00845
23,108,00
144,349.53
4,033.76
7,882.03
272.14
52.53
75.00
1,026.54
177.35
804,09
94,35
State Road
State Road
State Road
Commission
Commission
Commission
REPORT OF THE COURT OF CLAIMS (Continued)
(1-b) Approved claims and awards
referred to the Legislature, 1969, for the period April 1, 1968 to May 1, 1969:
No.
D-49
C-25
D-1004
C-i
D-4
D-81
D-134
D-48
D-90
D-3 1
D- 119
D-91
D-47
D-2
D-21
D-141
D- 115
D-5
D-52
Amount
Awarded
—
240.00 2,500.00
7,200.00
1,016.41
104.31
Date of
Determination —
September 9, 1968
May 16, 1968
January 27, 1969
July 12, 1968 May 16, 1968
Name of
Claimant
Matheny, James L.
Medley, W. E.
Mountain State Consultants,
Inc.
National Rubber and Leather Company
Nickell, Martha J. and Stonewall Casualty Co.
Otis Elevator Company
Owens, Robert C.
Phillips, Ralph
Rahall Realty Company
Reliance Electric and
Engineering Company
Robison, James and Norma
S. J. Groves and Sons Inc.
Shinn, Lois
Smith, Raymond R.
Southern Coals Corp.
Southern, George B., Jr.
State Construction Co.
State Farm Mutual Automobile Insurance
State Farm Mutual Automobile Insurance
Amount
Name of Respondent Claimed
State Road Commission 265.00
State Road Commission 3,000.00
Workmen’s Compensation 7,200.00
Fund
State Road Commission 1,016.41
State Road Commission 104.31
Department of Finance 426.61
and Administration
State Road Commission 681.73
Aeronautics Commission 1,744.00
Department of Welfare 45,000.00
Department of Public 53.54
Institutions
State Road Commission 202.62
State Road Commission 47,660.16
State Road Commission 1,400.00
State Road Commission 12,000.00
State Road Commission 5,401.31
State Road Commission 316.08
State Road Commission 296,308.28
State Road Commission 148.01
State Road Commission 36.05
10,000.00
426.61 October 16, 1968
>4
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4-4
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681.73
1,744.00
40,500.00
53.54
202.62
17,583.06
435.00
2,400.00
5,401.31
316.08
87,823.61
148.01
36.05
January 28, 1969
July 2, 1968
January 28. 1969
May 16, 1968
January 28, 1969
February 10, 1969
September 9, 1968
July 12, 1968
July 2, 1968
January 28, 1969
April 24, 1969
May 24, 1968
July 2, 1968
B-3445 Stollings, Marilyn
State Road Commission
10,000.00 January 17, 1968
No.
Name of Claimant
REPORT OF THE COURT OF CLAIMS (Continued)
(1-b) Approved claims and awards
referred to the Legislature, 1969, for the period April 1, 1968 to May 1, 1969:
D-70
D-61
D-127
C-24
D-26
D-87
D-73
C-15
Amount Claimed
Amount Awarded
T &
L—Wheeling Plumbing and Industrial Supply Company
United Air Lines, Inc.
Vincent, Robert
C. E. Wetherall, d/b/a
C. E. Wetherall Company
Williams, Patrick C.
Williams, Prince A.
Wilson, William L.
Wisecarver, Donald L.
Date of Determination
Name of
Respondent
Department of Public Institutions
Department of Finance and Administration
State Road Commission State Road Commission
Department of Vocational Rehabilitation
State Road Commission Department of Public
Institutions
State Road Commission
2,275.22
512.91
181.08
15,380.17
24.00
88.20
31.00
45.00
2,275.22
512.91
181.08
5,506.55
24.00
88.20
31.00
45.00
November 8, 1968
October 16, 1968
January 28. 1969 July 12, 1968
May 24, 1968
January 27, 1969
December 9, 198
April 24, 1968
‘Borbely, Leslie.
Claim paid by Federal funds.
2Byrd, Norma Jean. Claim paid by Federal funds.
3Earles, Louis A. Claim paid by Federal funds,
4Mountain State Consultants, Inc. Claim denied by Court of Claims but awarded
by Legislature.
$Stollings, Marilyn. Claim denied by Court of Claims but awarded by
Legislature.
(2) Approved claims and awards satisfied by payments out of regular
appropriations for the biennium: (None.)
(3) Approved claims and awards satisfied by payments out of special
appropriations made by the Legislature to pay claims arising during the
biennium: (None.)
C)
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0
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CD
(4) Claims rejected by the Court:
REPOR1 OF THE COURT OF CLAM (Coa5ued)
Name of Claimant
Aetna Life and Casualty Company
Ashby, Elwin
Bache & Co., Inc.
Bice’s Greenhouse
Blankenship, Michael
Blondheim, Margaret
and Randal K.
Bryant, John E.
Cavanaugh Landscaping Company
Central Asphalt Paving & Con crete Construction Company Central Asphalt
Paving & Con crete Construction Company
Cephas, Charles H.
Chesapeake and Ohio Railway Company
City of Morgantown
Crowder & Freeman, Inc. Dave Ellies Industrial Design, Inc.
Federico, Emanuel
Freeman, Mrs. Bryan
Fuller, Wadie
Hammack, Jack E.
Harris, Paul N, and Virgie
Name of Respondent State Road Commission
State Road Commission
State Tax Commissioner
State Road Commission
State Road Commission
Department of Public Institutions
State Road Commission Department of Natural
Resources
State Road Commission
State Road Commission
Department of Public Institutions
State Road Commission
Board of Governors of
W. Va. University State Road Commission Dept. of Commerce
State Road Commission
State Road Commission
State Road Commission
State Road Commission
State Road Commission
Amount
Claimed
$ 84,59
102 99
8,792.03
26 00
71,57
50,000 00
128.46
583,492 70
8,418.31
23,783,06
50,000.00
96.31
40,886.22
753,05
7,569 80
8,914 50
55,09
500.00
957.00
20,000.00
No, C-5b
C23
D-63
D67
D-60
D-37
C-17
D77
B298
C-29
D57
B-386
D-46
B-378
D25
C-20
D1
D49
D-83
D76
Amount Date of
Awarded Detesmination —
Dismissed April 8, 1968
Dismissed April 8, 1968
Disallowed November 8 1968
Dismissed May 16, 1968
Dismissed April 26 1968
Disallowed November 8 1968
Dismissed March 22, 1968
Disallowed January 27, 1969
Denied January 17, 1968
Disallowed May 24 1968
Disallowed September 9, 1968
Dismissed December 27, 1968
Dismissed November 8, 1968
Disallowed
Denied January 17, 1968
Dismissed April 8, 1968
Disallowed September 9, 1968
Dismissed April 8, 1968
Dismissed September 9 1968
Disallowed November 8, 1968
Disallowed December 16. 1968
Cl
Cl)
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Cl H
0
C
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)
z
Cl)
REPORT OF THE COURT OF CLAiMS (Conthiued)
(4) Claims rejected by the Court:
No,
D-22 —
D-51
D-74
D27
D49
D23
C-3
C3l
C-4
D..72
Drn54
D45
D-41
D400
C-8
D-24
B-399
B38O
C48
D-59
C-5
D-8
B3Th
D-53
C-12
Name of Claimant
Harrison,
Mr. & Mrs. T. E
Harrouff, Brooks
Hockaday, A. K.
Hott, Gary
Insured Transporters Inc.
Interstate Lumber Co.
Johnson, Harry G. and Ruth M
Kerns, Harold
Lovejoy, Gilbert and Hevalene
Marlow, Maurice A.
McCoy, Guy E
Meadows, Jimmie
Mertz, Michael, Jr.
Mountain State Consultants, inc.
Nuzum, Mary Ann
Oliver, Charles C.
Oscar Vecellio, Inc.
Oxley, Geary
Parrish, Everett L.
Powers, Robert Lee
Ramey, C. F., Jr.
Roberts, Golda D.
Short, Teresa Ann by her next friend Mary Louise Short
Silvestex, Anthony
Smith, Lewis W.
Name of
Respondent
State Road Commission
State Road Commission
State Road Commission
Dept Natural Resources
State Road Commission
W. Va. National Guard
State Road Commission
State Road Commission
State Road Commission
State Road Commission
Secretary of State and State Auditor
State Road Commission
State Road Commission
Workmen’s Compensation Fund
State Road Commission
State Road Commission
State Road Commission
State Road Commission
Aeronautics Commission
Board of Education
State Road Commission
State Road Commission
Department of Public stitutions
State Road Commission State Road Commission
Amount Claimed
Dismissed
Disallowed
Disallowed
Denied
Denied
Dismissed
Dismissed
Disallowed
10,000 Disallowed
128,75 Dismissed
46,35 Dismissed
a
a
C
z
0
a
z
Amount Date of
Awarded Determination
Disallowed
Dismissed
Dismissed
Disallowed
Dismissed
Dismissed
Dismissed
Dismissed
Dismissed
Dismissed
Disallowed
Dismissed
Dismissed
Disallowed
439.00
50,00
1,014,73
233 40
272.31
2,011.00
12,000.00
108 15
12,000.00
2000
225.00
131.30
500,00
7.200,00
30.00
175,94
48,564.80
71.00
1,650 00
15,000.00
194.53
1,260.80
September 9 1968
May 16, 1968
September 9. 1968
June 5, 1968
September 9, 1968
April 8, 1968
December 9, 1968
March 21, 1968
December 9, 1968
September 9 1968
September 9, 1968
September 9, 1968
September 9, 1968
January 27, 1969
February 23 1968
September 19, 1968
January 17, 1968
November 1, 1967
May 16, 1968
November 8, 1968
April 8, 1968
June 5, 1968
December 27, 1967
May 16, 1968
March 23, 1968
In-
REPORT OF THE COURT OF CLAIMS (Continued)
(4) Claims rejected by the Court:
Amount Amount Date of
No. Name of Claimant Name of Respondent Claimed Awarded
Determination
D-66 Smith, Walter Boone I State Road Commission 20.60 Dismissed May 16, 1968
B-381 State Farm Mutual Insurance State Road Commission 88.79 Disallowed
November 1, 1967 Company
D-55 State Farm Mutual Insurance Department of Public 1,002.24 Disallowed
September 19, 1968 Company Institutions
D-80 State Farm Mutual Insurance State Road Commission 79.26 Disallowed November
8, 1968 Company
B-344 Stollings, Marilyn State Road Commission 10,000.00 Disallowed January 17,
1968
C-li Swisher, Charles L. State Tax Commissioner 288.57 Denied April 24, 1968
D-89 Teer, Nello L. State Road Commission 19,975.50 Disallowed January 27, 1969
C-9 Thompson, Delbert, Adm. of State Road Commission 25,000.00 Disallowed May
24, 1968 Estate of Creola Thompson,
dec.
C-22 Webb, Mrs._Rudolph State Road Commission 900.00 Denied May 16, 1968
(5) Advisory determinations made at the request of the Governor or the head of
a state agency: (None.)
NOTE: Subsections (1), (2), (3), (4), and (5), respectively, of the above table
conform to and correspond with the similarly numbered subsections of section 25
of the Court of Claims Law.
t12
OPINIONS
TABLE OF CASES REPORTED
xxXTx
TABLE OF
CASES REPORTED
Akers,
Everett Lee v. State Road Commission 127
Albert, Acie W. v, State Road Commission 124
Ansline, Louis v. State Road Commission 31
Armco Steel Corporation v. State Road Commission 33
Bache & Co., Inc. v. State Tax Commissioner 168
Baker & Hickey Company v, State Road Commission 195
Beasley, Henry A. v. State Road Commission 110
Biggs-JohnstonWithrow v. Department of Welfare 36
Biller, Clifford v. State Road Commission 14
Blankenship. Walter L. v. State Road Commission 66
Blondheim, Margaret and Randal K. v. Department of Public
Institutions 170
Borbely, Leslie v. Department of Mental Health 129
Bowman, Irving, etc. and Fred Wiedersum, etc. v. Department
of Commerce 5
Brown, Ott v. State Road Commission 15
Buchanan, Emmett v. State Road Commission -. 16
Buckeye Union Casualty Company and Melvin O’Brien v. State
Road Commission -
- -
Byrd,
Norma Jean v. Department of Mental Health 129
C. A. Robrecht Company v. Department of Education (D-1OA) 125
C. A. Robrecht Company v. Department of Education (D-1OB) 126
C. A. Robrecht Company v. Department of Mental Health (D-11) 68
C. A. Robrecht Company v. Department of Mental Health (D-14) ill
C. A. Robrecht Company v. Department of Mental Health (D-12) 131
Calhoun. Sam. D. v. State Road Commission 37
Cavanaugh Landscaping Company v. Department of Natural
Resources 200
Central Asphalt Paving & Concrete Construction Company v.
State Road Commission (C-29) -- 94
Central Asphalt Paving & Concrete Construction Company v.
State Road Commission (B-298) - 38
Central Asphalt Paving Co. v. State Road Commission (C-27) 112
Central Asphalt Paving Co. v. State Road Commission (C-28) 115
Cephas, Charles H. v. Department of Public Institutions. 149
Chamberlain, Warren and Justine v. State Road Commission 118
XL TABLE OF CASES
REPORTED
Chapman, Peter v. State Road Commission 163
Charleston Concrete Floor Company v. State Road Commission
(B-297) I
Charleston Concrete Floor Company v. State Road Commission
(D-6) 104
Charleston Construction, Inc. v. State Road Commission - 205
Chatfield, Katharine v. State Road Commission 117
Chesapeake & Ohio Railway Company v. State Road Commission 173
City of Morgantown v. Board of Governors of West Virginia
University 174
City of Morgantown v. Adjutant General 79
Clark, James D. v. State Road Commission 40
Collins, Russell v. State Road Commission (B-385) 20
Collins, Russell v. State Road Commission (B-384) 41
Columbia Ribbon and Manufacturing Company v. Department of
Finance and Administration - - 164
Crowder and Freeman, Inc. v. State Road Commission 43
Curry, William and Mary E. v. State Road Commission 105
DeBolt, Mary Ann v. Department of Mental Health 164
Deskins, Thornton v. State Road Commission 227
Dotson, C. L. v. State Road Commission 152
Dotson. Clarence E. v. State Road Commission - 22
Earles, Louis A. v. Department of Mental Health 129
Elmore, Clarence C. v. Alcohol Beverage Control Commission - 97
Eureka Pipe Line Company v. Department of Natural Resources 100
Federal Insurance Company and Raymond T. Dalton v. State
Road Commission --
83
Federico, Emanuel v. State Road Commission 153
Fowler, Hubert v. State Road Commission 51
Frame, Doran, dba Doran Frame Electrical Contractors v. State
Road Commission -
- - - 80
Gano, W. E., Sr. v. State Road Commission 82
Gordon, Richard v. State Road Commission 223
Greene, J. E. v. State Road Commission 155
Hammack, Jack E. v. State Road Commission - -- 182
TABLE OF CASES
REPORTED XLI
Harris, Paul N. and Virgie v. State Road Commission 189
Harrison, Mr. and Mrs. T. E. v. State Road Commission 156
Hass, J. I. v. State Road Commission 209
Haynes Construction Company v. State Road Commission 165
Haynes, J. C. v. State Road Commission 208
Hendershott, George C. and Audra H. v. State Road Commission 23
Hott, Gary v. Department of Natural Resources - 106
Hurley, Mary Jane v. State Road Commission 44
International Business Machines Corporation v. Department of
Finance and Administration 120
Johnson, Harry G. and Ruth M. v. State Road Commission 186
Jordon, Lawrence V. v. Department of Education - 228
Keith, Kenneth G. v. State Road Commission 137
Kenton Meadows Company, Inc. v. State Road Commission - 6
Kucera, Charles J. and Josephine Ann v. State Road Commission 179
Laird Office Equipment Company v. State Road Commission 85
Langenfelder, C. J. and Son, Inc. v. State Road Commission - 69
Lovejoy, Gilbert and Hevalene v. State Road Commission - 186
Lewis, Mr. and Mrs. James P. v. Department of Public Institutions 192
Lopez, Vincent v. State Road Commission - - 223
McCoy, Guy E. v. Secretary of State and State Auditor 159
McElwee, Charles R. v. Department of Welfare - - 24
McKinney, Shirley v. State Road Commission -- - - 212
Matheny, James L. v. State Road Commission 158
Medley, W. E. v. State Road Commission - - 86
Miller, Harry L. v. State Road Commission - 46
Mountain State Construction Company v. State Road Commission 10
Mountain State Consultants, Inc. v. Workmen’s Compensation
Fund -
213
National Rubber and Leather Company v. State Road Commission 138
Neeley, Marshall v. State Road Commission 45
Nickell, Martha J. and Stonewall Casualty Co. v. State Road
Commission 87
XLII TABLE OF
CASES REPORTED
Oliver, Charles C. v. State Road Commission 144
Oscar Vecellio, Inc. v. State Road Commission 47
Otis Elevator Company v. Department of Finance and Administra tio 167
Owens. Robert C. v. State Road Commission 223
Parrish, Everett L. v. Aeronautics Commission 89
Phillips, Ralph v. Aeronautics Commission 121
Powers, Robert, Adm. etc. v. Department of Education - 242
Rahall Realty Company v. Department of Welfare 225
Reliance Electric and Engineering Company v. Department of
Public Institutions -
- -- 91
Remington Rand Office Systems Division, Sperry Rand Corpora tio v. Department
of Welfare -
60
Robbins, John v. State Road Commission 51
Roberts, Golda D. v. State Road Commission 108
Robison, James and Norma v. State Road Commission 229
S. J. Groves and Sons, Inc. v. State Road Commission 230
Sargis, Alice and Shual v. Adjutant General - 52
Shinn, Lois v. State Road Commission 162
Short, Teresa Ann, by her next friend, Mary Louise Short v.
Commissioner of Public Institutions - 28
Smith, Raymond R. v. State Road Commission 141
Southern Coals Corporation v. State Road Commission (D-21) - 122
Southern Coals Corporation v. State Road Commission (B-366) 2
Southern, George B., Jr. v. State Road Commission 235
State Construction Company v. State Road Commission 236
State Farm Mutual Automobile Insurance v. State Road Commis sio (D-5) - 102
State Farm Mutual Automobile Insurance v. State Road Commis sio (D-52). -- -- - - 123
State Farm Mutual Automobile Insurance Company v. State Road
Commission (B-390) -
55
State Farm Mutual Insurance Company v. State Road Commission
(B-381) --
- - - - - - 54
State Farm Mutual Insurance Company v. Department of Public
Institutions (0-55) 146
State Farm Mutual Insurance Company v. State Road Commission
(0-80) --
- 180
TABLE OF CASES
REPORTED XLIII
Stollings, Marilyn v. State Road Commission 56
Swisher, Charles L. v. State Tax
Commissioner 73
T & L—Wheeling Plumbing and Industrial Supply Company v.
Department
of Public Institutions 181
Teer, Nello L. v. State Road Commission 2i6
Tenny, Delos v, State Road Commission 59
Thompson, Delbert, Adm. of the Estate of Creola Thompson,
deceased v. State Road Commission 75
United Air Lines, Inc. v. Department of Finance and Administra tio 167
V. N. Green and Company v. State Road Commission 38
Vincent, Robert v. State Road Commission 240
W. A. Abbitt Company, Lory Planing Mill Company, Asbestos and
Insulating Company, Hunt Electric Company, B & N Plumbing
& Heating Company, Harris Brothers Roofing Company, Worth
Sturgeon and Floor Fashions, Inc., dba Arrow Rug Company
v. Department of Welfare. 62
Warner, Roy L. v. State Road Commission - 24
Webb, Mrs. Rudolph v. State Road Commission - 92
Wetherall, C. E., dba C. E. Wetherall Co. v. State Road Commission 133
Williams, Patrick C. v. Department of Vocational Rehabilitation 103
Williams, Prince A. v, State Road Commission - - 241
Wilson, William L. v. Department of Public Institutions - - - 192
Wisecarver. Donald L. v. State Road Commission - - 78
Wood, John L. v. State Road Commission 31
Cases
Submitted and Determined
in the Court of Claims in the
State of West Virginia
Opinion issued October 30, 1967
CHARLESTON CONCRETE FLOOR COMPANY
V.
STATE ROAD COMMISSION
(No. B-297)
A claim for losses sustained by contractor because of delays attributable to
State Road Commission, and no fault of contractor, will be approved.
Frank L. Taylor, Jr., for claimant
Theodore L. Shreve, for respondent
Jones, Judge:
This claim was filed before the Attorney General, prior to the creation of this
Court; and now comes before the Court upon a stipulation of facts which may be
summarized as follows:
In the years 1958, 1959 and 1960, the claimant was awarded contracts by the
State Road Commission for the construction of 14 bridges incorporated in the
Interstate Route 64 construction project. None of said contracts provided for
the payment of labor rates in excess of those specifically set out. The
contracts required that the claimant complete the bridges within a specified
number of working days after the commencement of the several projects and it is
not contended that the claimant failed in this respect. The claimant was not
permitted to begin work on said projects until after lapses of time of nine
months, seventeen months, three months, four months, fifteen months, thirteen
months, ten months, six months, seven months, two months, two weeks, twelve
months, nine and one-half months and four months, and on several of the
projects the claimant
2 REPORTS
STATE COURT OF CLAIMS [W. VA.
was required to cease work for periods of several weeks up to one year. The
bids were made by the claimant on the basis of tne hourly wages prescribed for
the claimant pursuant to its contract with the Constructors’ Labor Council of
West Virginia, inc., in effect at the time the bids were tendered. The labor
contract provided for wage rate increases in January, 1959, 1960 and 1961. The
State Road Commission has agreed upon “expected completion dates” for each of
said bridge projects; and the applicable labor rates which the claimant was
required to pay subsequent to said “expected completion dates” resulted in an
increased cost to the claimant under each of the contracts. Had the claimant
been allowed to proceed at the time it was awarded each contract the losses
would not have occurred. The original claim of the claimant was for the
aggregate amount of S19,794.48, and under the stipulation this has been reduced
to 14,500.02.
In our opinion the losses sustained by the claimant were caused by the State
Road Commission, and were in no way the fault of the claimant; the claim is
just and proper; and an award is made to the claimant in the sum of $14,500.02.
Opinion issued October 30, 1967
SOUTHERN COALS CORPORATION
V.
STATE ROAD COMMISSION
(No. B-366)
Conflicting testimony will be considered and weighed, and only that portion of
a claim which is proved by a preponderance of evidence will be allowed.
Lee M. Kenna, for claimant
Theodore
L. Shreve, for respondent
Jones, Judge:
Originally, this claim was filed before the Attorney General. It arose from a
contract awarded to the claimant by The State Road Commission for the
construction of a portion of Interstate
W.VA,] REPORTS
STATE COURT OF CLAIMS 3
Route 64 in Cabell County. The claim
is in two parts, and both result from the failure of base course materials to
meet specifications.
Claim A is for labor performed and equipment used by the claimant on May 14 and
15, 1964. The claimant contends that on May 13, John W. Miller, Project
Engineer for the State Road Commission, informed the claimant’s superintendent
that the base course material in place between Stations 152 pius 10 and 138
plus 00 was approved for paving. Crews were ordered in, forms were set and
preparations for paving were carried on throughout May 14 and 15. According to
the State Road Commission Diary, Tom Miller, District Materials Division,
visited tne project office between 3:45 and 4:30 p.m. on May 15 and composed a
letter for the signature of W. A. Cashion, acting project supervisor, directed
to the contractor and informing him that the only base course material on the
project meeting gradation specifications was that in place between Stations 152
plus 10 and 138 pius 00. At 5:30 p.m. on that day Cashion verbally ordered
cessation of all operations. Cashion’s letter of May 15, directed to Mr. Howard
Lane, Superintendent, Southern Coals Corporation, Huntington, West Virginia,
contains three paragrapus, as follows:
‘The Project Engineer of the above project has sent you a letter dated May 13,
1964, that instructed you to remove the base course material from Sta. 152 plus
10 to Sta. 149 pius 00. On May 14, 1964, you complied with these instructions.
However, we must inform you that the only base course material placed on said
project that met the gradation requirements was the material placed on May 14,
1964. This material was placed from Sta. 152 pius 10 to Sta. 138 plus 00 in the
South Bound Lane. Therefore, in addition to the material you have previously
removed, you are required to remove all base course material with the exception
of the material placed on May 14, 1964.
We request that this additional material be removed as soon as possible and
replaced with specification material.”
This letter was delivered after the work in question was done, but it does give
credence to claimant’s contention that it
4 REPORTS
STATE COURT OF CLAIMS [W. VA.
proceeded under verbal instructions
from the Project Engineer. Miller was not produced as a witness, and there is
no evidence that he exceeded his authority. The claimant produced evidence,
which is not contradicted, that its loss for work done and equipment used on
May 14 and 15, 1964, was $3,099.67. We believe the contention of counsel for
the State Road Commission that there was no privity of contract between the
claimant and the State Road Commission is not sustained.
After all work was stopped at the end of the day on Friday, May 15, a meeting
of the parties was set for Monday, May 18. It then appeared that all of the
material in question was noncompliance material relative to specification
requirements and the claimant would be required to remove all of the material
from the project and replace the same with satisfactory material, or, in the
alternative, the project would be shut down until further testing and analysis
could be undertaken and concluded. It was agreed that there was a possibility
of variations and errors in previous testings, and, mainly at the behest of the
claimant, it was agreed that further tests should be made.
The claimant contends that the tests undertaken by the State Road Commission
were unreasonably delayed and resulted in losses to the claimant in the sum of
$10,920.50 over a period of one-half month. In fact, samples were taken on May
18, and delivered to the Material Controls Division on May 19, and the test
results were reported on May 25, five working days after May 18. During the
following days, the test results were analyzed, and on May 29 the Project
Engineer and the contractor were notified that all results were negative. A
letter confirming the results was written on June 2 and was received by the
claimant on June 3.
It would appear that this testing was a major undertaking, one involving the
entire project and requiring the most thorough testing and anaylsis. The
eventual decision eliminated all of the base course materials provided by the
claimant as being below standard and all of such material had to be removed
from the project and was subsequently replaced. Claimant’s witnesses contend
that the tests and analyses should not have taken so long; expert testimony for
the State Road Commission upheld its contention that the time taken was
entirely necessary and reasonable. The situation was engendered by
W. VA.] REPORTS STATE COURT OF CLAIMS 5
the claimant; we feel that the State
Road Commission acted with reasonable dispatch; and therefore Claim is denied.
Claim A is allowed and an award is made in the sum of
$3,099.67.
Opinion issued December 12, 1967
IRVING BOWMAN, DOING BUSINESS AS
IRVING
BOWMAi\ ASSOCIATES, and FREDERIC P. WIEDERSUM, NORMAN J. WIEDERSUM and FREDERIC
G. WIEDERSUM,
PARTNERS DOING BUSINESS AS FREDERIC P.
WIEDERSUM ASSOCIATES
V.
DEPARTMENT OF COMMERCE
(No. B-192)
Vincent V. Chancy, for claimant
Titomas P. O’Brien, for respondent
Jones, Judge:
This claim was filed before the Attorney General of West Virginia on the 27th
day of November, 1964. Evidence was taken on the 8th and 13th days of January,
1965, and the claim was submitted for decision on the latter date. No action
having been taken prior to the creation of this Court, the claim was set down
for further hearing on the 30th day of October, 1967, and at that time it was
submitted for decision upon the record theretofore made.
By contract dated August 29, 1962, the Department of Commerce of the State of
West Virginia employed International Fair Consultants, Inc., to furnish certain
architectural, landscaping design and layout, and engineering services for the
erection, construction, equipping and landscaping of an exhibition pavilion on
the grounds of the New York World’s Fair. By subcontract dated August 29, 1962,
entered into with the knowledge and consent of the Department of Commerce,
International Fair Consultants, Inc., employed the claimants to furnish all the
architectural, landscaping and related services provided for in the prime
contract.
6 REPORTS STATE COURT OF CLAIMS [W. VA.
The clairnans proceeaed to furnish the
required services, out during the course of their empioyirlent, the State of
West Virgirna cancelled tue International Fair Consultants, Inc., contract, and
by letter dated April 21, 1964, informed the claimants that the termination of
that contract in no way affected their position as architects or record for the
Pavilion and tnat all payments due the claimants under their contract would be
forthcoming. Accordingly, the claimants continued to perform the services
contracted for and rendered statements for such services, part of which were
paid. The invoices which were not paid and which constitute their claim, total
the sum of $23,582.15.
Four wiLnesses weie produced by the clannants and their testimony carefully
details and describes the services performed and expenses incurred in pursuance
of the agreement. The Department of Commerce produced no witnesses and in no
way contradicts the claim. The Court is of opinion that the claim is supported
by clear and convincing proof, and there being nothing more than token iesistance
on the part of the Department of Commerce, the Courl hereby awards to the
claimants the sum of $23,582.15.
Singleton, Judge, did not participate in this decision.
Opinion issued December 12, 1967
KENTON
MEADOWS COMPANY, INC.
V.
STATE ROAD COMMISSION
(No. B-331)
John E. Davis, for claimant
John L. Ward, for respondent
Jones, Judge:
This claim originated before the Attorney General of West Virginia and was
ready for decision when this Court was created.
W. VA.] REPORTS
STATE COURT OF CLAIMS 7
The claimant entered into a contract with the State Road Commission, in January
1963, for relocation of a gas pipeline in Wood (iounty at a total contract
price of $152,608.25.
Item C of the contract provided for the removal of 12,570 lineal feet of pipeline
to be salvaged ana owned by the claimant, which was bid at 50 cents per lineal
foot or a total of $6,285.00. The claimant proved that it had a firm commitment
for the sale of the pipe to be salvaged at l.00 per foot or $12,570.00. By
letter, dated July 11, 1963, B. G. Loser, District Engineer, instructed the
claimant not to perform the work under Item C of the contract, setting forth
that the bid price for this item was less than 10% of the total contract price
and, therefore, not considered to be a major item, and subject to deletion
under Section 1.4.2 of the Standard Specifications, Roads and Bridges of the
State Road Commission of West Virginia. Said Section 1.4.2 further provides the
following:
“The Commission may omit any item or items, in the Contract, provided that
notice of intent to omit such item or items is given to the Contractor before
any material has been purchased or labor involved has been performed, and such
omission shall not constitute grounds for any claim for damages or loss of anticipated
profits. The Commission may omit any item or items shown in the estimate, at
any time, by agreeing to compensate the Contractor for the reasonable expense
already incurred and to take over at actual cost any unused material purchased
in good faith for use for the item or items omitted.”
The claimant adds the contract price for Item C of $6,285.00 and the committed
sales price of the salvaged pipe of $12,570.00 and contends that Item C
involves $18,855.00, which is more than 10% of the total contract price, that
it was the low bidder by approximately the amount of income it expected to
receive from this item, and that it has been damaged in the amount of
$12,570.00 which it expected to profit from this item,
While the Court believes that the part of the contract involved here is the bid
figure of $6,285.00, which is iess than 10% of the total contract price, and
not the total amount that claimant expected to realize from the work performed,
plus the anticipated profit fiom the sale of salvaged pipe to
8 REPORTS
STATE COURT OF CLAIMS [W. VA.
a third party, the State Road Commission apparently relies primarily on the
provision of the Standard Specifications quoted above. The claimant contends
that the words, “Before any material has been purchased or labor involved has
been performed” are intended to include actions taken by the contractor in
reliance upon the contract which would result in financial detriment upon the
omission of the item in question. The claimant also says that “The reasonable expense
already incurred” is the third party’s commitment to pay $12,570.00 for
salvaged pipe, and that the State Road Commission could only omit the item by
agreeing to pay said amount to the claimant. However, after stretching the
language of the specifications as far as it will go. we have to deal with what
we consider to be the controlling words of the Section which are: “p * * and such omission shall not constitute grounds for any
claim of damage or loss of anticipated profits.” The claimant did not show any
out-of-pocket loss, hut to the contrary, can only point to an anticipated
profit of $12,570.00 which certainly is not “material * * *purchased”, “labor * * *pcrformed’
or “reasonable expense.”
Accordingly, the claim arising out of Item C of the contract is denied.
The second part of this claim is more difficult, involving the greater portion
of a 530 page record of conflicting testimony taken before the Attorney
General, and now before this Court for consideration and decision. The contract
provided that “all specifications of welding procedures, materials, equipment.
conditions, testing, etc., are to foiJow and be in strict agreement with the
latest ASA-B31.1-1955 Code for Pressure Piping, Section 6, Chapter IV, or API
Standard 1104 ‘Standard for Field Welding of Pipelines’.” The contract
documents further provide that:
“The Commission shall be privileged at any time to cut welds from the pipeline
for the purpose of testing each welder’s work. The first such weld for each
welder will be replaced by the Contractor at no cost to the Commission. Welds
removed from the line shall be subjected to the same test as the qualification
weld. If these tests are satisfactory to the Engineer, the Commission will bear
the cost of replacing the weld (except as noted above). If the weld
W. VA.)
REPORTS STATE COURT OF CLAIMS 9
does not pass the tests, the
Contractor shall bear the cost of replacing the weld, and the welder who made
the weld shall be removed from the job.”
The State Road Commission employed Robert W. Hunt Company, Engineers, for
inspection of materials to be used by the claimant, qualification of welders
and determination of fulfillment of API-1104 Specifications. The Robert W. Hunt
Company subcontracted the inspection work to Consolidated Testing Laboratories.
Trouble between the claimant and Consolidated Testing Laboratories started
immediately. The contract between the State Road Commission and the claimant
provided that the claimant should begin work within ten days and complete work
on the project in ninety calendar days. The claimant commenced work on February
5, 1963, and was ready for inspections on March 27, 1963. Consolidated did not
arrive at the project until April 3, 1963, apparently under an arrangement with
the State Road Commission that it should commence work on April 2, 1963. The
claimant asserts damages for delay and waiting time labor costs of $1,750.00
and delay and waiting equipment costs of $5,014.80, for one week’s delay.
Thereafter, during the course of the project, Consolidated rejected 133 of 400
welds as not meeting specifications of API-1104, and the claimant consistently
contended that the specifications were not properly applied. The claimant
protested strongly and frequently to the State Road Commission: and hired
independent inspectors who checked much of the rejected work and agreed with
the claimant that most of it was acceptable under the API-1104 Code. The
claimant urged the State Road Commission to conduct independent tests, and on
one occasion, three cut out welds, rejected by Consolidated, were taken to the
State Laboratory where they were subjected to destructive tests (admittedly
most accurate), and found to be acceptable. Neither Consolidated nor Hunt
seemed to be interested in settling the controversy, remaining aloof and
uncooperative. Considering the evidence of the claimant’s experience and proven
ability in the construction of pipelines, the 33-1/3% rejection rate imposed
upon the claimant appears on its face to be excessive, and the evidence
supports such a conclusion.
While the testimony taken in this case is highly conflicting, we are of opinion
that a great many welds were improperly
10 REPORTS STATE
COURT OF CLAIMS [W. VA.
rejected, that notices of acceotance or rejection were unduly withheld, and that
resultant delays were substantial and damaging to the claimant. It
also appears to be significant that work contracted to he performed in ninety days required an additional one hundred
twenty days for completion, and the State Road Commission exuressly waived any
penalties for late performance. However, this portion of the claimant’s demand,
in the amount of $41,361.76, appears to include the complete cost of repairing
and reolacing all welds rejected by the inspectors and all of the waiting time
labor and equipment occasioned by such rejections, which is not fully supported
by the evidence. Neither are we convinced that the claimant is entitled to
damages in the amount of $6,764.80 for a full week’s delay at the commencement
of work. A precise mathematical measurement of the claimant’s damages is not
possible. but we have endeavored to reach a decision that will be fair and
equitable. It is our judgment that the claimant, Kenton Meadows Company, Inc.,
should recover, and we do hereby award to said claimant the sum of 28 535.00.
Opinion issued December 12, 1967
MOUNTAIN
STATE CONSTRUCTION CO.,
A WEST VIRGINIA CORPORATION. Claimant,
vs.
THE
STATE ROAD COMMISSION
OF WEST VIRGINIA, Respondent.
(Claim No. B-338)
W. T. Brotherton,
Jr., Esquire, for Claimant.
Theodore Shreve, Esquire, for Resoondent.
Singleton. Judge:
This claim was filed May 17, 1966, with the Attorney General. The
evidence of claimant and respondent was taken and the record made before the Claimi Examiner for that Mce at
a heari held November 15, 16 No opinion was recidrd by the A*eriey General
and the entire record and case file was
W. VA.) REPORTS STATE COURT OF CLAIMS ii
delivered to this Court after July 1,
1967, for consideration and decision.
The record discloses that claimant was on January 23, 1959, awarded a contract
by the State Road Commission for construction of Mud River Bridge Number 2104
on Interstate 64 in Cabe]l County. known as Project No. 1-64-i (11) 18, for the
sum of $329 660.93, to be completed in 225 working days. The work was completed
and the bridge opened to traffic in the fall of 1961, although the State Road
Commission had disclosed that the bridge rocker on Pier Two was in tioped
position. Deterioration or “spalling” of portions of the bridge deck began to
appear in the spring of 1962 and this condition accelerated during subsequent
months, use of the bridge by traffic continuing. On August 15, 1961, the State
Road Commission by letter directed the claimant to reset the Pier Two rocker in
question in accordance with plans prepared by the State Road Commission and
advised Claimant that the State Road Commission would pay for this work on a
“force account” basis. This same letter directed claimant to remove certain
sections of the bridge deck affected by the “spalling” and replace same, this
work to be done at claimants expense. Claimant protested replacement of
portions of the deck at its expense and did not proceed until 1963, when the
State Road Commission threatened to invoke the forfeiture provisions of the
standard specifications, Claimant then advised the State Road Commission that
it would proceed with the rocker correction and would also proceed with the
bridge deck replacement, under protest. and file a claim for the replacement
costs thereof in accordance with the specifications. At this same time,
claimant requested that the State Road Commission join with it in obtaining the
services of an independent consultant to evaluate the cause of the deck
“spalling”. The State Road Commission did not agree, and claimant then advised
it would obtain the services of such a consultant at its expense. Claimant was
paid for its work in connection with the correction of the Prier Two rocker but
not for replacement of the bridge deck, and this claim in the amount of
$67,681.89 was filed.
It is claimant’s position that:
(1) The tilting of Pier Two resulting in the tipping of the rocker was not the
result of faulty construction on its part.
12 REPORTS
STATE COURT OF CLAIMS [W. VA.
but was due to a shift in the earth
fill or to a design failure:
and,
(2) That the “spalling” or deterioration of portions of the bridge deck was due
primarily from tensile or lateral stresses exerted on the deck by the tilting
of pier Two and the subsequent tipping and locking of the rocker, with the
salting of the deck during the winters of 1961-62 and 1962-63 contributing to
this deterioration.
Respondent contends that the spalling of the bridge deck resulted from poor
workmanship and material in the batching, pouring and handling of the concrete.
The reports of both independent consultants were admitted into evidence, the
report of Harry Balke, Consultant for the claimant, being marked Claimant’s
Exhibit No. 1 and the report of C. H. Scholer, Consultant for respondent, being
marked Claimant’s Exhibit No. 2. The Balke report places the cause for the
spalling and deterioration of the bridge deck entirely upon the tilting of the
piers, possibly contributed to by the “action of salt through two winters”. The
report of Scholer, the consultant for the respondent, surmises that inadequate
placing and finishing practices by the contractor may have contributed to the
poor results secured, but stated that it “is very doubtful if there is
sufficient evidence to hold the contractor responsible for the unsatisfactory
results”. This Scholer report also raises the question as to the reasons for
the additional three hours required to pour the Sequence 2 in the Tlorth span
(the greatest portion of the bridge deck removed) a opposed to the pouring of
the other sequences of the bridge deck. The record is silent as to the cause
for this delay, and inasmuch as it is the contention of the State that such a
delay was a contributing factor to the deterioration of the concrete, it is
interesting to note that the engineer for the claimant was not cross examined
or questioned at all concerning this issue so as to place any cause for the
delay upon the contractor.
Claimant’s exhibits Nos. 4, 5 and 6 were the testing reports of the Materials
and Testing Labratory of the State Road Commission approving the sand, gravel
and cement used in the batching and mixing of the concrete placed by the
contractor in the bridge deck. The record discloses that all of the deck
W. VA.]
REPORTS STATE COURT OF CLAIMS 13
concrete was prepared from these
materials and while both consultants raise the question as to the adequacy of
the aggregate, it was a material approved by the State Road Commission and
specifically approved for use in this project. The evidence further discloses
that the bridge deck was poured over a period of a month and a half and that
only the sections in the vicinity of Pier Two, the tilted pier with the tipped
rocker, deteriorated badly. There was no question, as is pointed out in the
report of R. P. Davis. consulting bridge engineer, that an exarninawas wrong
with the concrete. These photographs were also adtion of the photoeraphs taken
of the deck concluded something mnitted into evidence and made a part of the
record by respondent.
After consideration of the record, the evidence and exhibits offered on behalf
of the claimant, and the evidence and exhibits offered on behalf of the
respondent, the Court is of the opinion that the claimant constructed the
bridge and bridge deck in question in accordance with the plans and
specifications, using the materials approved by the State Road Commission, and
the mixing and supervision of the placement of said concrete being under the
constant control and supervision of inspectors for the State Road Commission; and
that other than conjecture that the claimant was guilty of faulty workmanship
in the pouring of the deck in question, there is no evidence that the
contractor was guilty of any negligence or poor workmanship contributing to the
deterioration of the deck. While the Court is of the opinion that it is not
incumbent upon the respondent to prove a defense to a claim by a preponderance
of the evidence, there must be some evidence to sustain respondent’s position
where the claimant has made a clear prima facia case for relief. The Court is
therefore of the opinion that the claimant has proven by a preponderance of the
evidence that a moral obligation on the part of the State of West Virginia
exists and that this claim clearly is one that in equity and good conscience
the State should discharge and pay. Inasmuch as the reasonableness of the
amount requested by claimant for the work and labor performed and materials
furnished in the placement of the bridge deck was not questioned by the State
Road Commission, it is further the opinion of the Court that the claimant,
Mountain State Construction Company, a West Virginia Corporation, should
recover, and an award is made
14 REPORTS
STAfl COURT OF CLAIMS [W.VA.
to the claimant in the amount of $67288.99, the original amount of the claim
having been reduced by the court to reflect the reduction of the Business and
Occuoation tax rate for contractors from 2.6% to 2%.
Opinion issued December 27, 1967
CLIFFORD
BILLER
vs.
STATE ROAD
COMMISSION
OF WEST VIRGINIA
(No. B-398)
Thomas
P. O’Brien, Assistant
Attorney General and Robert
R. Harpold, Jr., Attorney, for
respondent.
Singleton, Judge:
This claim was filed before the Attorney General of West Virginia on January
31, 1967, and set on the hearing docket of this Court for November 3, 1967.
Upon the case being called for hearing there was no appearance for the
claimant, Clifford Biller. The Assistant Attorney General and the Attorney for
the State Road Commission tendered to the Court a letter from George H.
Samuels, Director of the Legal Division of the State Road Commission of West
Virginia dated October 10, 1967, advising that an investigation of the
allegations contained in claimant’s petition filed herein had been found to be
true and correct and the amount set forth as compensation for damages therein
to be reasonable, and that the State Road Commission was willing to stipulate
same.
On the basis of this information, there being no objection on the part of the
Attorney General, it was the considered opinion of the Court that the facts set
forth in the petition do present a claim within the jurisdiction of this Court,
and the same are considered stipulated herein between claimant and respondent.
W. VA.] REPORTS STATE
COURT OF CLAIMS 15
The Court further
considered the facts set forth in the
petition and the items of damage claimed by the claimant and the Court is of
the oninion that said facts as set forth in said petition do constitute a valid
claim against the State of West Virginia that in equity and good conscience
should be paid; and the Court is of the opinion and it is our judgment that the
claimant, Clifford Biller, should recover, and we do hereby award the said
claimant the sum of $124.00.
Opinion issued
December 12, 1967
OTT BROWN
V.
STATE ROAD COMMISSION
(B—391)
Frederick T. Kin gclon, or claimant
Thomas P. O’Brien, for petitioner
Jones. Judge:
The claimant, Ott Brown, alleges that on June 24, 1966, while driving on a
state highway between Maben and Saulsville in Wyoming County, he was stopped by
a construction crew flagman. employed by the State Road Commission. to await a
blast about to be set off along the road, and that the blast was set off by
State Road Commission employees and a rock was blown onto the top of claimant’s
automobile, a 1960 Chevrolet, causing damage in the amount of 68.25. The State
Road Commission has stipulated that the facts as alleged are true, that the
same constitute negligence, and that the amount of the claim is reasonable.
Therefore, the claimant, Ott Brown, is awarded the sum of
$68.25.
16 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued December 27, 1967
EMMETT BUCHANAN
vs.
STATE ROAD COMMISSION
OF WEST VIRGINIA
(No. B-392)
Thomas P. O’Brien, Assistant Attorney General and Robert R. Harpold, Jr., Attorney, for respondent.
Singleton, Judge:
This claim was filed before the Attorney General of West Virginia on December
21, 1966, and set on the hearing docket of this Court for November 2, 1967.
Upon the case being called for hearing there was no appearance for the
claimant, Emmett Buchanan. The Assistant Attorney General and the Attorney for
the State Road Commission tendered to the Court a letter from George H.
Samuels, Director of the Legal Division of the State Road Commission of West
Virginia dated October 10, 1967, advising that an investigation of the
allegations contained in claimant’s petition filed herein had been found to be
true and correct and the amount set forth as compensation for damages therein
to be reasonable, and that the State Road Commission was willing to stipulate
same.
On the basis of this information, there being no objection on the part of the
Attorney General, it was the considered opinion of the Court that the facts set
forth in the petition do present a claim within the jurisdiction of this Court,
and the same are considered stipulated herein between claimant and respondent.
The Court further considered the facts set forth in the petition and the items
of damage claimed by the claimant and the Court is of the opinion that said
facts as set forth in said petition do constitute a valid claim against the
State of West Virginia that in equity and good conscience should be paid; and
the Court is of the opinion and it is our judgment that the claimant, Emmett
Buchanan, should recover, and we do hereby award the said claimant the sum of
$102.40.
W. VA.]
REPORTS STATE COURT OF CLAIMS 17
Opinion issued December 27, 1967
BUCKEYE UNION CASUALTY COMPANY, A
CORPORATION, AND MELVIN O’BRIEN, AN
INDIVIDUAL, Claimants,
vs.
STATE ROAD COMMISSION
STATE OF WEST VIRGINIA, respondent.
(Claim No. B-280)
Henry C. Bias, Jr., Esquire, for Claimant
Philip J. Sheets, Esquire, for Respondent
Singleton, Judge:
This claim was filed with the Attorney General and the evidence of the claimant
and respondent offered and the record made before the Claims Examiner for that
office at hearings held on the 30th day of September, 1965, and October 15,
1965. No opinion was rendered herein by the Attorney General and the entire
record and case file was delivered to this Court after July 1, 1967 for
consideration and decision.
It appears from the record that one E. 0. Clower was awarded a contract by the
State fload Commission on June 28, 1960 for the construction of approximately
seven miles of gravel surfaced access road from Neola to Sherwood Lake in
Greenbrier County, designated as Project No. F H 10-A, to be completed in 200
working days for the sum of $319,803.00. Subsequent change orders and
engineering cost reimbursement to the State Road Commission resulted in the
reduction of this figure to $304,582.41. The project was contracted for under
the State Road Commission Standard Specifications, 1952. E. 0.
Clower, because of financial difficulties, defaulted under this contract after
completing work thereunder valued at $140,856.51 by the State Road Commission.
Clower’s surety on his performance bond, The Buckeye Union Casualty Company, by
contract dated August 31, 1961, engaged Melvin O’Brien to complete the
contract. O’Brien thereafter worked during the remainder of the construction
season of 1961, the construction season of 1962 and the project was finally
completed in Novem
18 REPORTS
STATE COURT OF CLAIMS -
[W. VA.
ber of 1963, although the final estimate and payment on the contract was not
made until August 16, 1965. By instrument dated September 27, 1966, Buckeye Union assigned any and all of its
interest in this claim to Melvin O’Brien, said instrumerit having been filed
with t1e Attorney General and included in the file
of this proceeding.
This claim is in the amount of $79,200.00 for extra work required of the
contractor caused by State Road Commission grade errors; additional
compensation over the unit price for a gravel over-run in excess of 40%
(11,999.96 cubic yards); compensation for expenses incurred due to unwarranted
delay in completion of the project caused by the State Road Commission changes
in allowable tolerances in final grades, cnanges in methods of ascertaining
grade, refusal of State Road Commission to permit contractor to do work on
project during winter of 1962 that could have been done, and harrassment due to
an excessive number of State Road Commission inspectors; expenses incurred in
constantly re-grading previously finished work caused by State Road
Cornmnissions insistence that the road be constantly open to traffic; and under
drain placement expense over and above the contract.
Testimony was offered by claimant O’Brien and his position substantiated
generally by his two supermtendents on this project. Respondent’s chief
witnesses were the project engineer, Mr. Pennell and the Assistant District
Engineer, Mr. Shaluta. Various exhibits were offered to substantiate the losses
sustained by claimant and the contract ana specifications were made a part of
the record by respondent. While there was some conflict as to the length of
roadway removed and then required to be replaced by contractor due to a mistake
in grade, there is no conflict in the evidence as to the fact that this mistake
was on the part of the State Road Commission. The testimony of the State Road
Project Engineer indicates that he felt that the contractor should be paid for
this extra work and that it was an oversight on his part that no item was
included in the final estimate for this project to cover this expense. (Record—
Page 268—Penneil). The big item of damages claimed by the contractor is the
$5.80 per cuoic yard demanded for the gravel over-run of approximately 40%
above the original contract estimate. (11,999.96 cubic yards). The unit price
for an over-run
W. VA.]
REPORTS STATE COURT OF CLAIMS 19
of this percentage is subject to negotiahon under the standard specifications
covering this project. The unit price called for in the contract was $1.90 per
cubic yard, and the State Road Commission paid tne contracuor for the over-run
at this unit price on the ground that he had failed in preliminary negotiations
to substantiate any higher costs. While the Court is of the opinion that the
contractor did not establish by a preponderance of the evidence that he had
sufficient additional costs to warrant payment of the sum of $5 80 per cubic
yard for this extra gravel, the Court is of the opinion that the evidence
adduced on behalf of the claimant is more than sufficient to substantiate the
additional sum of $1.50 per cubic yard. The evidence further discloses this
project far exceeded the original estimate of 200 working days for completion.
There is evidence to substantiate contractor’s contention that he desired to
continue some work in 1962 that could have been done despite weather conditions
but he was prohibited by the State Road Commission. It is further uncontradicted
that the tolerances permitted the contractor in his subgrade and top dressing
grade were changed during the course of this contract from a tenth of a foot
tolerance in 1962 to a half mcn tolerance in 1963, and that the methods of
checking these grades and tolerances were also changed from time to time. While
it further appears that these changes in procedure were within the authority of
the State Road Commission, it is also clear that they could not have been
reasonably contemplated by the contractor in his undertaking of this contract,
particularly the regrading of the approximately seven miles of roadbed at the
completion of the project to conform to the newly established tolerance scale,
and the Court i of the opinion that the evidence warrants some additional
compensation to the claimant by reason of these changes, delays and extra work.
It is the opinion of the Court that the claimant would have been entitled to
some additional compensation as a result of this contract and his performance
thereof had this dispute arisen between two private individuals. The claimant
did perform his contract, and in the words of Mr. Shaluta, respondent’s
witness, “whether he was going bankrupt or not, he did do the job and he did it
in a proper manner.” (Direct examination, Record, Page 288).
20 REPORTS
STATE COURT OF CLAIMS [W. VA.
After consideration of the record, the evidence and exhibits offered on behalf
of the claimant, the evidence and exhibits offered on behalf of the respondent,
arid the arguments in the record made by counsel for both claimant and
respondent. the Court is of the opinion that the claimant has proven a valid
claim against the State Road Conmission of West Virginia which the State as a
sovereigi commonvvealth should in equity and good conscience discharge and pay;
and it is therefore our judgment that the claimant should recover the sum of
$12,000.00 for the extra work and iosses sustained in the removal and
subsequent replacement of considerable length of roadbed due to a grading error
on the part of the State Road Commission, additional compensation for the
over-run in gravel in the amount of $18,000.00, and additional compensation for
extra work and additional costs incurred due to delays occasioned by procedural
changes through no fault of the claimant in the amount of $9,775.00, and a
total award is hereby made to said claimant in the amount of $39,775.00.
Opinion issued December 12, 1967
RUSSELL COLLINS
vs.
STATE ROAD COMMISSION
OF WEST VIRGINIA
(No. B-385)
Thomas P. O’Brien, Assistant Attorney General and Robert R. Harpold, Jr., Attorney, for respondent.
Singleton, Judge:
This claim was filed before the Attorney General of West Virginia on December
21, 1966, and the evidence offered on behalf of the claimant and respondent heard
by this Court on November 1, 1967.
The claimant was not represented by counsel.
W. VA.]
REPORTS STATE COURT OF CLAIMS 21
This claim is controlled by the same facts and circumstances
applicable to Claim Nos. B-379 and B-384, all rising from blasting operations
conducted by the State Road Commission on West Virginia State Route 49, near
Lynn, in Mingo County, West Virginia.
It appears from the evidence that the damages to claimant’s 1959 Anglia parked
near his dwelling house adjacent to the aforementioned state highway on or
about August 29, 1966, resulted from blasting operations being conducted by
employees of the State Road Commission in accordance with orders from their
appropriate supervisors to clear and reduce certain rock formations near to the
highway. There is no evidence that the claimant was guilty of any act or
omission that contributed to the damage sustained.
It is the opinion of this Court that the claimant has proven his case by a
preponderance of the evidence and that this claim in equity and good conscience
should be paid by the State of West Virginia.
The evidence as to the cost of repairs to the vehicle involved is conflicting,
the claimant offering an estimate prepared by a qualified repair service and
the State Road Commission offering evidence by a witness qualified in the field
of automobile repairs. Considering all of said evidence relating to the cost of
repairs, it is our judgment that the claimant, Russell Collins, should recover,
and we do hereby award to him the sum of
$50.00.
22 REPORTS
STATE COURT
OF CLAIMS [W. VA.
Optnion issued December 27, 1967
CLARENCE E. DOTSON
vs.
STATE ROAD COMMISSION
OF WEST VIRGINIA
(No. B—379)
Thomas P. O’Brien, Assistant Attorney General and Robert R. Harpold, Jr., Attorney, for respondent.
Singleton, Judge:
This claim was filed before the Attorney General of West Virginia on December
21, 1966, and the evidence offered on behalf of the claimant and respondent
heard by this Court on November 1, 1967.
The claimant was not represented by counsel.
This claim is for damages to a 1956 Chevrolet pick-up truck owned by the
claimant which was parked adjacent to West Virginia State Route 49, at or near
Lynn, Near Thacker, Mingo County, West Virgmia, on or about August 29, 1966,
said damages being allegedly caused by blasting operations conducted by
employees of the State Road Commission. The evidence of the claimant and that
of the respondent indicate that the employees of the State Road Commission were
conducting blasting operations for the removal of certain shoulder rock along
State Route 49; that as a result of one detonation fragments of rock and debris
damaged claimant’s vehicle as well as a dwelling house situate near by, and
that the blasting operations were being conducted by the said employees of the
State Road Commission in accordance with orders issued by their County and
District Supervisors. There is no evidence that the claimant was guilty of any
act or omission that contributed to the damage sustained.
It is the opinion of this Court that the claimant has proven his case by a
preponderance of the evidence and that this claim in equity and good conscience
should be paid by the State of West Virginia.
W. VA.]
REPORTS STATE COURT OF CLAIMS 23
It is, therefore, the judgment of this Court that the claimant, Clarence E.
Dotson, should recover, arid we do hereby award to said claimant the sum of
$87.55.
Opinion issued December 27, 1967
GEORGE C. HENDERSHOTT
AND AUDRA H. HENDERSHOTT
vs.
STATE ROAD COMMISSION
OF WEST VIRGINIA
(No, B.395)
Thomas P. O’Brien, Assistant Attorney General and Robert R. Harpold, Jr., Attorney, for respondent.
Singleton, Judge:
This claim was filed before the Attorney General of West
Virginia on January 31, 1967, and the evidence on behalf of
claimants and respondent heard by this Court on November 3,
1967,
The claimants appeared in person to present their claim and were not
represented by counsel.
Claimants are the owners of a farm adjacent to West Virginia State Secondary
Route 11, in Ravenswood District, Jackson County, West Virginia. On June 15,
1966, employees of the State Road Commission, during the course of cutting and
removing trees from the right-of-way of the State of West Virginia, cut a large
tree and negligently permitted it to fall upon claimants’ barn destroying
approximately twelve feet of the barn’s roof and breaking rafters therein.
Claimants further ask damages for the loss of fifty bales of hay which were
stored in the barn and which rotted due to being exposed to rain as a result of
the hole in the barn roof, The evidence offered by the claimants clearly
established the foregoing facts, and no conflicting evidence was offered by the
State Road Commission.
24 REPORTS
STATE COURT OF CLAIMS [W. VA.
After consideration of the record and the evidence and exhibits offered on
behalf of the claimants, the Court is of the opinion that the claimants have
proven by a preponderance of the evidence a valid claim against the State Road
Commission of West Virginia which in equity and good conscience should be paid;
and the Court is of the further opinion and it is our judgment that the
claimants, George C. Hendershott and Audra H. Hendershott, should recover, and
we do hereby award the said claimants the sum of $350.79.
Opinion issued December 27, 1967
CHARLES R. McELWEE
vs.
DEPARTMENT OF WELFARE
(No. D-34)
Singleton, Judge:
This claim was filed before the Court of Claims on November 14, 1967, there
being filed with claimant’s Petition a Stipulation of Facts executed and approved
by the Claimant, L. L. Vincent, Commissioner of the Department of Welfare of
the State of West Virginia and C. Donald Robertson Attorney General of the
State of West Virginia, representing the Department of Welfare in this matter.
The Petition, as corroborated by the Stipulation of Facts, sets forth that
Charles R. McElwee, an attorney, was engaged by Mr. L. L. Vincent of the
Department of Welfare of the State of West Virginia, to draft certain
legislation for the Department of Welfare in 1966 for presentment to the 1967
Session of the West Virginia Legislature and that the claimant was to be paid
for his services on the basis of hours expended and that the hourly rate for
compensation was to be Seventeen Dollars and Fifty Cents ($17.50) per hour.
The Petition of claimant as corroborated by the Stipulation of Facts reveals
that claimant did perform the services he had been requested to do, and did
prepare legislation revising substantially Chapters Nine (9) and Forty-Nine
(49) of the Code of West Virginia, all relating to the Department of Welfare of
W. VA.]
REPORTS STATE COURT OF CLAIMS 25
the State of West Virginia; that he thereafter rendered his statement to the
Department of Welfare in the amount of Two Thousand Seven Hundred Dollars
($2,700.00) for the work and services he had performed, it being stipulated by
the Attorney General and the Commissioner of Welfare that the charges made by
the claimant are fair and reasonable considering the services rendered.
On the basis of the claimant’s Petition, the Stipulation of Facts above
referred to and filed with this Court, and after examining all of same, it is
the considered opinion of the Court that the facts set forth in the Petition do
present a claim within the jurisdiction of this Court and the Stipulation of
Facts filed as an exhibit with this petition is hereby accepted and approved.
After further consideration of the facts set forth in the Petition and the
amount claimed by claimant as compensation for services rendered to the State
of West Virginia, the Court is of the opinion that said facts do constitute a
valid claim against the State of West Virginia that in equity and good
conscience should be paid; and the Court is of the opinion and it is our
judgment that the amount claimed as compensation by claimant is fair and
reasonable, and that he, Charles R. McElwee, should recover, and we do hereby
award the said claimant the sum of Two Thousand Seven Hundred Dollars
($2,700.00).
Opinion issued December 27, 1967
ROY L. WARNER
V.
STATE ROAD COMMISSION
OF WEST VIRGINIA
(No. B-91)
James C. West, Jr., Attorney at Law, Clarksburg, West Virginia for
claimant.
Singleton, Judge:
This claim was filed before the Attorney General of West Virginia on November
13, 1962. Claimant alleges in his Petition
26 REPORTS STATE COURT OF CLAIMS [W. VA.
that he was the successful bidder and was
awarded a water well drilling contract by the State Road Commission of West
Virginia to drill a water well in a roadside park on United States Route No.
33. six miles east of Buckhannon, West Virginia. Although the claimant’s bid as
submitted by him and as evidenced in the record was for Two Dollars ($2.00) per
foot for drilling and Two Dollars ($2.00) per foot for casing the well. The
advance approval purchase order (not issued until August 24, 1962) provided
that the amount to be paid for the well drilling was not to exceed the sum of
One Thousand Two Hundred Dollars ($1,200.00).
Claimant commenced on this project on September 20, 1961, and by September 29,
1961, had drilled the well to a depth of 131 feet and had run 111 feet of six
inch galvanized pipe into the well. At this point a stream of hard and
unpalatable water was encountered, and under the direction of the State Road
County Supervisor of Upshur County and Mr. Mendel, State Supervisor of Roadside
Parks Development, claimant undertook to pull the pipe so that the well could
be drilled deeper and the hard unpalatable water stream blocked. Difficulties
were incurred and the claimant moved to another job for which he had previously
contracted not connected with the State Road Commission.
In November of 1961 claimant was requested to resume work in the well in
question and between November 27 and December 16, 1966, claimant worked an
additional thirteen days at the well site on instructions of the State Road
Commission representatives attempting to remove the casing by “jarring”,
running new four inch casing into the well, reaming the hole out deeper trying
mudding and cementing operations to stop the flow of unpalatable water, and
pulling and replacing the four inch pipe which was down three or four times.
The well had now been drilled to a depth of 171 feet, on instructions of the
State Road Commission. He then ceased operations and subsequently submitted his
invoice to the State Road Commission for One Thousand Eight Hundred Forty
Dollars and Sixteen Cents ($1,840.16), which itemized invoice is a part of the
record in this proceeding. The State Road Commission, on an appropriate
requisition, submitted this invoice for payment to the Budget Division but it
was refused by the Budget Dlvi-
W. VA.]
REPORTS STATE COURT OF CLAIMS 27
sion
inasmuch as the total invoice was in excess of the original One Thousand Two
Hundred Dollars ($1,200.00) authorized for this project. The State Road
Commission re-submitted an invoice in the amount of One Thousand Two Hundred
Dollars ($1,200M0) and this amount was paid to Mr. Warner, which amount he
received conditionally with the express under standing that he would pursue his
claim for the Six Hundred Forty Dollars and Sixteen Cents ($640.16) for his
additional work and labor performed and materials furnished on this project.
As before stated his claim was then filed before the Attorney General and the
matter set down for hearing by Philip J. Graziani, Assistant Attorney General,
then Claims Examiner. It does not appear from the record, but the Court is
advised that no hearing was held for the actual introduction of evidence and
that the facts set forth in Mr. Warner’s petition were agreed to as correct by
the State Road Commission.
Under the procedure then in effect for the processing of claims against the
State, the Attorney General’s Office recommended to the Legislature that the
claim of Mr. Roy L. Warner in the amount of Six Hundred Forty Dollars and
Sixteen Cents ($640.16) be paid; this recommendation being made to the 1963
Session of the West Virginia Legislature. Mr. Warner’s claim in this amount was
included in a claims bill to be considered by the Legislature but that Legislature
failed to pass any claims bill.
The file and record in this claim does not disclose any further action in
regard to this claim and the file in this matter was turned over to this Court
by the Office of the Attorney General after this Court was created July 1,
1967. By letter dated December 13, 1967, James C. West, Jr., attorney for the
claimant moved this Court to consider this claim as one pending before the
Attorney General at the time of the creation of the Court and that this Court
review the file and record and render a decision in this matter.
After considering the file and record in this claim, this Court is of the
opinion that this claim was pending before the Attorney General at the time of
the creation of this Court and is, therefore, a proper claim to be considered
by this Court. Upon
28 REPORTS
STATE COURT OF CLAIMS [W. VA.
further consideration of all of the records and the exhibits and documents
filed with this claim, and the letters of the Attorney General in this file,
and further considering the recommendation of the Attorney General that this
claim be paid, and the further fact that the State Road Commission originally
submitted Mr. Warrer’s bill for payment of the full amount of Eighteen Hundred
Forty Dollars and Sixteen Cents ($1,840.16) this Court is of the opinion that
this claim is a just and proper one that the State of West Virginia in equity
and good conscience should pay; and it is therefore our judgment that the
claimant, Roy L. Warner, should recover, and we do hereby award the claimant
the sum of $640.16.
W. Lyle Jones, Judge, did not participate in the consideration of this claim.
Opinion issued December 27, 1967
TERESA ANN SHORT, An Infant, by her
next friend,
MARY LOUISE SHORT,
V.
WELCH EMERGENCY HOSPITAL AND THE
COMMISSIONE{ OF PUBLIC INSTITUTIONS
OF WEST VIRGINIA
(No. B-375)
Harry J. Capehart, Jr., Attorney at Law, Welch, West Virginia for claimant
Thomas P. O’Brien, Assistant Attorney General for respondent
Singleton, Judge:
This claim was filed December 19, 1966, before the Attorney General of West
Virginia and was set down for the taking of evidence before this Court November
1, 1967.
Claimant on behalf of the infant claimant alleges that on or about the 20th day
of December, 1964, infant claimant was admitted to Welch Emergency Hospital for
a fracture of her
W. VA.]
REPORTS STATE COURT OF CLAIMS 29
right arm or elbow; that her arm was put into a sling and she was released;
that approximately nine days later her arm was encased in a cast at Stevens
Clinic Hospital in Welch, West Virginia, and that during the healing of her arm
a large lump or knot was formed, requiring in 1967 a surgical open reduction of
this fracture performed at the Crippled Childrens Clinic in Charleston, West
Virginia, and that all of this difficulty, injury and disfigurement was due to
the negligence of Dr. George Riberio and the Welch Emergency Hospital in
initially treating her injured arm; and damages are sought for her in the
amount of Ten Thousand Dollars ($10,000.00).
The evidence adduced at the hearing from the hospital records reflects that
Teresa Ann Short was admitted on December 20, 1964, at 3:35 P.M. and that her
mother advised that she had injured her right elbow while playing. Dr. Gomez
admitted her to the hospital with a diagnosis of possible fracture and x-rays
were taken on the morning of December 21.
Her arm was put in a sling as soon as she was admitted to the hospital and ice
compresses applied to the arm to reduce the swelling. The x-rays taken of the
infant’s arm the next morning, also exhibited at the hearing and examined by
Dr. Riberio and the Court show a small supracondylar fracture of the lateral
aspect of the humerus with the bones in good position. The evidence further
discloses that the arm was not put into a cast but continued to be treated in a
sling; and it was shown by Dr. Riberio’s testimony that it was the customary
and usual treatment for this type of fracture for a four year old infant,
inasmuch as their healing ability is excellent, and that a cast was not
recommended. The hospital records as introduced into evidence further disclosed
that the patient was taken from the hospital on December 22, without being
discharged or released; that she was again brought to the hospital on December
28, when the patient was again examined by Dr. Gomez, his notes reflecting
there was still some swelling over the elbow and requesting that the patient be
returned in one week. The evidence further discloses that Mrs. Short did not
return her daughter to the Welch Emergency Hospital at any subsequent time, but
that on or about January 4, 1965, she took Teresa Ann Short to the Stevens
Clinic where her arm was again x-rayed and then placed in a cast by Dr. J.
Hunter Smith. The reports
30 REPORTS
STATE COURT OF CLAIMS [W. VA.
of the x-rays made at Stevens Clinic on January 4, 7, 8, 28 and May 23, 1967,
were not presented at the time of hearing but were subsequently presented by
the counsel for the claimant after inspection by the Attorney General to the
Court for its consideration.
The only witness for the claimant was the mother, No medical by Dr. Riberio’s testimony that it was the customary and
usual x-ray reports submitted subsequent to the hearing. Dr. Riberio testified
on behalf of respondent, testifying from the x-rays taken of claimant’s arm and
from the hospital records.
Claimant has alleged negligent treatment on the part of Dr. George Riberio and
Welch Emergency Hospital and this negligence is the sole ground for any
recovery that she might be entitled to, Viewing all of the evidence in its most
favorable aspect regarding claimant, this Court unfortunately can find no
direct evidence that the non-union of claimant’s fracture was proximately
caused by the negligence of Welch Emergency Hospital. Under the evidence in
this proceeding this non-union of claimant’s fracture and its failure to heal
properly could just as well have been caused by the cast applied at Stevens
Clinic on January 4, 1965.
This Court, therefore, finds that the claimant has failed to prove by a
preponderance of the evidence the justness and merit of her claim based on
negligent treatment at Welch Emergency Hospital, and it accordingly is the
opinion of this Court that this claim must be and it is hereby denied.
W. VA.]
REPORTS STATE COURT OF CLAIMS___ 31
Opinion issued December 12, 1967
JOHN L. WOOD
V.
STATE ROAD COMMISSION
(No. B-394)
W. Hayes Pettry, for
claimant
Thomas P. O’Brien, for respondent
Jones, Judge:
This
claim is in the amount of $1450 for damages to claimant’s buildings situated on
State Route No. 3 in Hinton, Summers County, West Virginia, resulting from negligent
blasting by the State Road Commission during the period from February to June.
1963, The State Road Commission has stipulated that based on its investigation,
the facts alleged by the claimant are true and that the amount claimed is
reasonable. The amount of damages is further supported by a written appraisal
by a State Appraiser, with approval by the Chief Reviewing Appraiser and the
Chief Appraiser for the State.
Accordingly, we hereby award the claimant, John L. Wood, the sum of $1450.00.
Opinion issued January 17, 1968
LOUIS
ANSLINE
V.
STATE
ROAD COMMISSION
STATE OF WEST VIRGINIA
(No. B-369)
Gary Rymer, Esq. for the Claimant
Thomas P. O’Brien, Assistant Attorney General, and
Robert R. Harpold, Jr., Esq. for the State Road Commission Ducker, Judge:
Claimant, Louis Ansline, owner of a 1965 GMC dump truck, claims damages in the
sum of $2,853.37 to his truck caused by
32 REPORTS
STATE COURT OF CLAIMS [W. VA.
a collision of a 1959 D500 dump truck, owned and operated by the State Road Commission,
with claimant’s truck on State Route No. 7 near the village of Sabraton,
Monongalia County West Virginia.
The facts as alleged in the claim filed and as testified to by witnesses for
the claimant are not disputed and the testimony fully substantiates the
allegations both as to the cause of the collision and as to the damages
alleged.
The proof shows that claimant’s truck was proceeding north on Route 7 toward
Morgantown, West Virginia, and the State Road Commission truck was proceeding
south on said highway down a slight grade, whereupon the driver of the State
Road Commission vehicle applied his brakes, lost control of the vehicle causing
it to slide on the highway, the surface of which was then wet, and the State
Road Commission truck turned around and around in the highway, crossing the
center line and the left-hand lane thereof, and colliding with claimant’s truck
which by that time was over on the berm of its right- hand side of the highway.
Claimant’s total damage amounted to $7,853.37, and in a settlement made by
counsel representing all the parties, namely, the claimant, the State Road
Commission, and the Buckeye Union Insurance Company as the insurance carrier on
behalf of the State Road Commission and its employee driver, negotiated a partial
settlement in the sum of $5,000.00, the limits of the insurance policy, which
was paid in reduction of the total claim, leaving unpaid the sum of $2,853.37,
which is the amount now claimed in the case.
As there is no dispute as to the facts and as it appears that this accident was
wholly attributable to the operations of the State Road Commission, we are of
the opinion to and do award the claimant the amount of his claim, namely,
$2,853.37.
Claim Allowed.
W.VA.J REPORTS
STATE COURT OF CLAIMS 33
Opinion issued January 17, 1968
ARMCO STEEL CORPORATION,
a corporation,
V.
STATE ROAD COMMISSION
STATE OF WEST VIRGINIA
(No. D-30)
R. Page Henley, Jr.,
Spilman, Thomas, Battle & Klostermeyer,
for the Claimant
Thomas P. O’Brien, Assistant Attorney General,
Robert R. Harpold, Jr. and Theodore
L. Shreve,
for the State Road Commission
Singleton, Judge:
Claimant, Armco Steel Corporation, filed in this Court on October 31, 1967 its
claim for $11,697.34 representing the price of 15,591 feet of Armco full-coated
and paved pipe taken over by the State Road Commission from a previous
contractor and which the Road Commission delivered to Central Asphalt Paving
Company and V. N. Green & Company for use in the construction of a portion
of highway Interstate 1-64 designated as Project 1-64-1 (37) 22.
All the facts were stipulated by counsel for the claimant and counsel for the
State, and the only real question for determination is the legal question
interposed by the attorneys representing the Road Commission, which question is
whether in its final analysis the claim is barred by the statute of limitation.
In 1960, Howard Price & Company was awarded a contract to construct a
portion of Interstate 1-64 in Cabell County, West Virginia, and that company
ordered on a rather uncertain basis from claimant the pipe necessary to
complete such work. In 1961, the State fload Commission advised Howard Price
& Company that that company would not be permitted to complete the work,
and the Road Commission then re-advertised the project and on April 30, 1963
awarded the contract therefor
34 REPORTS_STATE
COURT OF CLAIMS [W. VA.
to Central Asphalt Paving Company and V. N. Green & Company with the
express direction and understanding that the latter would not have to include
the price of pipe in their bid and that they would not be required to pay for
the pipe which had been delivered by claimant and which remained left on the
project and unused by Price and which would be turned over to the new
contractors. Such pipe was supplied to the new contractors and so used by them
in the installation of the same in the summer of 1963. Claimant attempted to
obtain judgment against Price in the District Court of the United States for
the Southern District of West Virginia, but was denied judgment on the basis
that it was not bought by Price but only ordered for use as needed. Whereupon,
the claim was filed in this Court on the ground that the State Road Commission
had taken the pipe, appropriated the pipe to its own use and furnished the same
to the new contractors, and thus had had the benefit of the material, and that
therefore the State either by unlawfully appropriating the property or by an
implied contract with Armco should pay for it.
The question is whether the claim is barred by the statute of limitation, that
is by the two year limitation which applies to actions cx delicto, or whether
the five year limitation as to implied contracts controls. Much has been said
in the brief of counsel for claimant as to just when the period of the statute
begins under this set of facts, and whether the statute has been tolled by the
suit in the Federal Court, the inability to make demand of payment because it
didn’t know as to whom demand should be made upon, and the lack of a Court to
determine the question. We believe it unnecessary to determine any question of
tolling, as the other facts and law applicable are sufficient for our decision.
It is the contention of the claimant that if the pipe was appropriated and
converted by the State Road Commission to its own use without the consent of
Armco, such act amounted to a tort. Under the well known principle of law as
expressed and applied in Walker v. Norfolk
& Western Railway Co. 67 W. Va.
273, 63 S. E. 722, claimant, as the owner of the pipe according to the decision
of the Federal Court, had the right to waive the tort of the Road Commission
and to sue on implied contract, and under such circumstances this tortious act,
if it were such,
W.VA.J
REPORTS STATE COURT OF CLAIMS 35
was committed by the State Road Commission in the spring and summer of 1963
when it delivered to or permitted the new contractors the right to use the same
and the new contractors so used it for the State Road Commission; and within
five years thereafter, namely, October 31, 1967, claimant filed this claim in
this Court, and we think that the claimant had the right and now has the right
to maintain this action at this time on the basis of implied contract, as the
five year statute of limitations is the statute relating to the matter, and
that statute has not run.
While the Federal Court did not say whose pipe it was when it was left on the
project by Price, it did hold that Price was not liable to claimant for its
value, which left the ownership or title to the pipe either in Armco or in the
Road Commission, and since the Road Commission either tortiously took it or
impliedly contracted with Armco for it, we believe Armco has the right to
maintain this action in this Court as a tort waived and on an election by Armco
to sue on contract implied by the facts within the five year period of the
statute of limitation.
And in addition to the legal rights of the parties, we are of the opinion that
the State has received full benefit of the property and is morally obligated to
pay the claim, and we do hereby award claimant, Armco Steel Corporation, a
corporation, the sum of $11,697.34.
Judge Ducker disqualified himself from participation in the consideration and
decision of this case.
Awarded $11,697.34.
36 REPORTS
STATE COURT OF CLAIMS [W. VA
Opinion issued January 17, 1967
BIGGS-JOHNSTON-WITHROW
V.
DEPARTMENT OF HEALTH
STATE OF WEST VIRGINIA
(No. B-393)
Thomas P. O’Brien, Jr., Assistant Attorney General, for the Department of
Health
Ducker, Judge:
The claimant, Biggs-Johnston-Withrow, a printing firm of Beckley, West
Virginia, in accordance with an order received by it from the West Virginia
Department of Health for the printing of 5,000 books, seeks payment of its
charges therefor in the sum of $4,400.00.
On March 9, 1966, the West Virginia Division of Purchases sent to the claimant
an order for the printing of 5,000 books entitled “A Guide for Teaching Dental
Health in West Virginia Schools”, which order was filled but the charges for
such work amounting to $4,400.00 remain unpaid. Upon the hearing of this claim,
it was stipulated by the Attorney General that the facts alleged by claimant
are true and the amount of the charges therefor is reasonable and correct, and
further that the only reason the claim was not paid was because the bill
therefor was presented after the close of the fiscal year and funds to pay for
the work performed were no longer available after the expiration of such fiscal
year.
In view of such state of facts, there seems no reason for a denial of
claimant’s right to have payment of its claim.
We are of the opinion to and do hereby award the claimant the sum of $4,400.00.
Claim Allowed.
W. VA.1
REPORTS STATE COURT OF CLAIMS 37
Opinion issued January
17, 1968
SAM D. CALHOUN
V.
STATE ROAD COMMISSION
STATE OF WEST VIRGINIA
(No. B-387)
Claimant present in person
Thomas P. O’Brien, Assistant Attorney General, and
Robert R. Harpolci. .Jr. for State Road Commission Ducker, Judge:
Sam D. Calhoun claims damages to his 1965 Chevrolet by reason of the State Road
Commission dropping gravel and cinders on his car when the Road Commission was
cleaning drain pipes on a bridge.
The claim which had been filed with the Attorney General was heard by this
Court on the stipulation by the parties that the facts as alleged in the
petition were true and that the amount of the damages was correct and
reasonable.
We are of the opinion, therefore, to allow the claim, and we hereby make an
award to the said Sam D. Calhoun in the sum of $30.90.
Award of $30.90.
38 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued January 17, 1968
CENTRAL ASPHALT PAVING COMPANY
and
V. N. GREEN AND COMPANY, INC.
V.
STATE ROAD COMMISSION
and
STATE OF WEST VIRGINIA
(No. B—298)
Frank L. Taylor, Jr., Esq. for claimants
Theodore Shreve, Esq. for State Road Commission Ducker, Judge:
The claimants, Central Asphalt Paving Company and V. N. Green and Company,
Inc., filed their claim against the State Road Commission with the Attorney
General of West Virginia on November 18, 1965, by virtue of the authority so
granted under Chapter 14, Article 2, of the Code of West Virginia, for the
payment of labor and materials furnished under Road Project No. S-661 (8),
Raleigh County, West Virginia, in the sum of $8,418.31, which claim after the
taking of evidence by and before the Attorney General was pending for decision
by this Court when it acquired jurisdiction of the same.
The Claimants were awarded an original contract dated May 6, 1963 for the
laying of concrete for the road embraced in the project, and the present claim
arose out of a Supplemental Agreement or Change Order dated July 13, 1964
which, among other things, provided that the asphaltic wearing course was to be
reduced from 110 pounds per square yard to 80 pounds per square yard and that
an experimental wearing course was to be added to the one originally specified,
which additional wearing course was to consist of hot laid asphaitic concrete
placed in accordance with specifications in an amount equal to 220 pounds per
square yard, such work to form the basis for an experiment then being conducted
by West Virginia University. Claimants
W. VA.j REPORTS STATE
COURT_OF CLAIMS 39
were to be compensated $649.06 per hour for actual working time expended in the “application” of the hot laid asphaltic
concrete to the experimental couse.
INo question is presented as to the quality of the work done or as to the
pioper fulfillment of the contract. The only question presented here is as to
the number of hours involved and consequently the amount of compensation for
such work. The claimants’ number of hours was calculated by them as 71.5 hours,
which at the contract price amounted to $46,407.79, but the Road Commission
calculated the time as 58.53 hours for which it paid claimants the sum of
$37,989.48, making a difference of $8,413.31 in the amounts, which latter
amount the claimants now seek to recover.
The difference arises by reason of the time alloted for the work in preparing
the paver equipment for operation, called “start-up” time spent on it at the
beginning of each day and the “clean-up” time spent on it at the end of each
day. The claimants claim an hour and a half at the beginning and the same
amount of time at the end of a day, but the Road Commission allowed and paid
for only a half hour at the beginning of each day and the same amount of time
at the end of each day. Settlement on the latter basis was made by the Road
Commission because it deiermined that to be a reasonable adjustment of the
controversy, and it was willing to do so because it recognized tnere was some
conflict in the wording of the Supplemental Agreement as to just what was
understood or intended by tne word “application” of the concrete work. On the
one hand “application” was to be construed as meaning only the time devoted to
“spreading and finishing,” while on the other hand it was to be construed as
covering in addition to time devoted to spreading and finishing all other time
involved in the work. The Road Commission concluded that some adjustment should
be made and so concluded to allow a half hour as start-up time and a half hour
for clean-up time.
From the exhibits filed both by the claimants and by the State Road Commission
we find it dicu1t, if not impossible, to determine with any degree of accuracy
just what is the correel amount of time so involved in start-up and clean-up
time, and we believe the matter was one which was properly a subject for
adjustment.
40 REPORTS
STATE COURT OF CLAIMS [W. VA.
The State Road Commission’s Exhibit
No. 1, filed in the record with the transcript of the evidence, is a letter
dated December 10, 1964 from Mark Fara, Research Manager of the Road
Commission, to Russell Quinn, District Engineer, District 10, giving recogniton
to the fact that there could have been some misunderstanding as to the meaning
of the word “application” and that the Road Commission wanted to pay for such
amount of time as was just and fair for start-up and clean-up time, and that
according to experience of said Road Commission official an allowance of a half
hour a day for start-up and a half an hour a day for clean-up time would be
fair, and for that reason and on that basis the claimants were paid, and we
agree with such conclusion and consider such settlement as fair and equitable.
In reviewing all the evidence in this claim, the Court is of the opinion to and
it is our judgment that the claimants, Central Asphalt Paving Company and V. N.
Green and Company, Inc., are not entitled to an award upon their claim, and
that their claim filed herein should.be and is hereby disallowed.
Claim Disallowed.
Opinion issued January 17, 1968
JAMES D. CLARK
vs.
STATE ROAD COMMISSION
(B-397)
Thomas P. O’Brien, Assistant Attorney General and Robert R. Harpold, Jr., Attorney, for respondent.
Jones, Judge:
This claim was filed before the Attorney General of West Virginia on January
31, 1967 and the evidence of the claimant, who was not represented by counsel,
was heard by the Court on November 3, 1967. No evidence was offered by the
respondent.
W. VA.]
REPORTS STATE COURT OF CLAIMS 41
Early in the morning of December 2, 1966, the claimant was driving his 1965
Volkswagen sedan along State Route No. 75 near Buffalo in Wayne County, West
Virginia. The road and bridge over Twelve Pole Creek were covered with snow and
ice, and the claimant was traveling at a moderate rate of speed. The claimant
had traveled this road and bridge, morning and evening, for 9 or 10 years, and
he had no knowledge of any defect in the bridge.
As the claimant crossed the bridge, a piece of the black top floor fell out and
a rear wheel of the claimant’s automobile fell through the hole, causing
considerable damage to the vehicle. There is no evidence that the claimant was
guilty of any act or omission that contributed to the damage sustained. The
claimant paid $70.15 for repairs.
It is the opinion of the Court that the claimant has proven his case by a
preponderance of the evidence and that this claim in equity and good conscience
should be paid by the State of West Virginia.
It is, therefore, the judgment of the Court that the claimant, James D. Clark,
should recover and he is hereby awarded the sum of $70.15.
Opinion issued January 17, 1968
RUSSELL COLLINS and DAVID GRIFFEY
vs.
STATE ROAD COMMISSION
(B-384)
Thomas P. O’Brien, Assistant Attorney General, and Robert R. Harpolci, Jr., Attorney, for respondent.
Jones, Judge:
This claim was filed before the Attorney General of West Virginia on December
21, 1966 and the evidence offered on behalf of the claimant and the respondent
was heard by the Court on November 1, 1967.
42 REPORTS STATE
COURT OF’ CLAIMS [W. VA.
Originally,
the claim was filed in the name of Russell Collins, but thereafter, because of
a question of ownership of the damaged property, an attemot was made to
amend the claim by substituting the name of David Griffey as the claimant.
Russell Collins, not being represented by counsel, appeared in person and
testified at the hearing; and no appearance was made by or on behalf of David
Griffey. Upon the taking of testimony, it became apparent to the Court that
Russell Collins was the true claimant, and, therefore, any claim which David
Griffey may have is hereby disallowed, and consideration by the Court is given
only to the claim of Russell Collins,
This claim is controlled by the same facts and circumstances applicable to
Claims Nos. B-379 and B-385. all arising from blasting operations conducted by
the State Road Commission on West Virginia State Route No. 49, near Lynn. in
Mingo County, West Virginia.
It appears from the evidence that on or about August 29, 1966 damage to the
claimant’s dwelling house resulted from blasting operations conducted by
employees of the State Road Commission pursuant to orders from their superiors
to clear and reduce certain rock formations near the highway. Rocks and debris
thrown by the blasting fell on the claimant’s dwelling house causing
substantial damage to the roof. siding, gutters and spouting. There is no
evidence that the claimant was guilty of an act or omission that contributed to
the damage sustained.
It is the opinion of the Court that the claimant has proven his claim by a
preponderance of the evidence, and that in equity and good conscience the same
should be paid by the State of West Virginia.
An estimate of the cost of necessary repairs in the amount of $453.1 made by
Matewan Lumber Company, appears to the Court to be fair and reasonable; and it
is the judgment of the Court that the claimant, Russell Collins. should recover
and he is hereby awarded the sum of $453.10.
W.
VA.] REPORTS STATE COURT OF CLAIMS___ 43
Opinion issued January 17, 1968
CROWDER & FREEMAN, INC.
vs.
STATE ROAD COMMISSION
(No. B-378)
Thomas P. O’Brien, Assistant Attorney General and Robert R. Harpold, Jr., Attorney for respondent.
Jones, Judge:
This claim was filed before the Attorney General of West Virginia on December
21, 1966.
At the hearing held by this Court on November 1, 1967, the claimant appeared by
its Vice President and Secretary, W. J. Freeman, Jr., and was not represented
by counsel.
This claim is for damages to the windshields of seven used cars, ranging from a
1960 Pontiac to a 1964 Cadillac, owned by the claimant and located upon
claimant’s used car lot on Route 460 between Princeton and Bluefield, alleged
to have been caused by blasting operations conducted by employees of the State
Road Commission. It is contended by the claimant that all of the windshields
were pitted by debris thrown by a dynamite blast on the opposite side of the
highway. Damages claimed are for the installation of seven new windshields at a
total cost of $753.05. The windshields were not installed and the claimant
alleges that the cars were sold at prices reduced by the cost of new
windshields.
The testimony of W. J. Freeman, Jr., for the claimant and Floyd Tolliver and J.
S. McNulty for the respondent was generally conflicting; and upon consideration
of all of the evidence, it is our opinion that the claimant failed to prove its
claim by a preponderance of the evidence. Therefore, it is our judgment that
this claim should be and it is hereby disallowed.
44 REPORTS STATE COURT OF CLAIMS [W. VA.
Opinion issued January 17, 1968
MARY JANE HURLEY
V.
STATE ROAD COMMISSION
STATE OF WEST VIRGINIA
(No. B-377)
Claimant present in person.
Thomas P. O’Brien. Assistant Attorney General, and
Robert R. Harpolcl,
Jr., for State Road Commission
DUCKER, JUDGE:
Claimant alleges that the State Road Commission in widening and re-surfacing
State Route No. 5 at Williams Mountain in Boone County, West Virginia, cut away
stone steps which provided access to claimant’s property, and while her claim
which had been filed with the Attorney General set out no specific amount of
damages, a later amended claim stated the amount to be $800.
Upon the hearing of the case before this Court, the testimony showed that on an
indefinite date a number of years ago the Road Commission in re-grading the
road within its right of way did damage to claimant’s fence and destroyed the
first two or three blocks of the steps to claimant’s property. None of her
property was taken for the right of way. The exact amount of damage was not proved
except $20 or $25 for the fence wire. For the inconvenience which the Road
Commission caused the claimant, this Court is of the opinion to allow the
claimant $50.00, which with $25.00 for the fence wire makes a total of
$75.00.
Wherefore, the claimant is awarded the sum of $75.00.
Award of $75.00.
W. VA.]
REPORTS STATE COURT OF CLAIMS 45
Opinion issued January 17, 1968
MARSHALL NEELEY
vs.
STATE ROAD COMMISSION
(No. B-388)
Thomas P. O’Brien, Assistant Attorney General and Robert R. Hcirpolcl, Jr., Attorney, for respondent.
Jones, Judge:
This claim was filed before the Attorney General of West Virginia on December
21, 1966 and the claimant’s testimony was taken at a hearing held on November
2, 1967. No evidence was offered by the respondent.
The claimant was not represented by counsel.
This claim is for damages to a 1960 Chevrolet automobile owned by the claimant
and being driven by him over State Route No. 25/6 in the City of Dunbar on
October 7, 1966. It appears from the evidence that the rock-base road was
deeply rutted and generally in a bad state of repair. The claimant’s car
dropped into a hole in the road and hit a washed-out manhole cover, not readily
visible, impaling the car and causing it to come to an abrupt and violent stop,
damaging the frame and other parts. There is no evidence that the claimant was
guilty of any act or omission that contributed to the damages sustained.
An estimate of repair in the amount of $125.73 was obtained by the claimant,
but thereafter it was determined that repairs were impractical and the car was
sold for junk.
It is our opinion that the claimant has proven his case by a preponderance of
the evidence and that this claim in equity and good conscience should be paid
by the State of West Virginia.
It is, therefore, the judgment of the Court that the claimant, Marshall Neeley,
should recover, and he is hereby awarded the sum of $125.73.
46 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued
January 17, 196
HARRY L. MILLER
vs.
STATE
ROAD COMMISSION
OF WEST VIRGINIA
(No. B.-389)
Thomas P. O’Brien, Assistant Attorney General and Robert R. Harpold,
Jr., Attorney, for respondent.
Singleton, Judge:
This claim was filed before the Attorney
General of West Virginia on November 16, 1966, and set on the hearing docket of
this Court for November 2, 1967.
Upon the case being called for hearing there was no appearance for the
claimant, Harry L. Miller. The Assistant Attorney General and the Attorney for
the State Road Commission tendered to the Court a letter from George H.
Samuels, Director of the Legal Division of the State Road Commission of West
Virginia dated October 10, 1967, advising that an investigation of the
allegations contained in claimant’s petition filed herein had been found to be
true and correct and the amount set forth as compensation for damages therein
to be reasonable, and that the State Road Commission was willing to stipulate
same.
On the basis of this information, there being no objection on the part of the
Attorney General, it was the considered opinion of the Court that the facts set
forth in the petition do present a claim within the jurisdiction of this Court,
and the same are considered stipulated herein between claimant and respondent.
The Court further considered the facts set forth in the petition and the items
of damage claimed by the claimant and the Court is of the opinion that said
facts as set forth in said petition do constitute a valid claim against the
State of West Virginia that in equity and good conscience should be paid; and
the Court is of the opinion and it is our judgment that the claimant, Harry L.
Miller, should recover, and we do hereby award the said claimant the sum of
$36.00.
W. VA.] REPORTS STATE_COURT OF
CLAIMS 47
Opinion issued January 17, 1968
OSCAR
VECELLIO, INC.
V.
STATE
OF WEST VIRGINIA
and
THE
STATE ROAD COMMISSION OF WEST VIRGINIA
(No: B-339)
Arden J. Curry, Esq. for the claimant
Theodore Shreve. Esq. for State Road Commission
Ducker, Judge:
The
claimant, Oscar Vecellio, Inc., a corporation, filed with the Attorney General
of West Virginia on May 24, 1966 its claim in the total sum of S46.564.80 for
alleged items of extra expenses and costs for which it was not paid by the
State Road Commission in connection with the contract for grading. draining,
basing and paving specified for road project U-282 (8) -C-2, commonly known as
the “Clarksburg Expressway,” in Harrison County, West Virginia. The claim was
heard and evidence taken by and before the Attorney General of West Virginia,
Claims Division beginning on July 14, 1966 in accordance with the law as
contained in Chapter 14, Article 2, Section 3, of the Code of West Virginia,
and was pending without decision by the Attorney General when this Court took
jurisdiction.
The contract awarded to the claimant by the State Road Commission was
originally calculated to be in the sum of $590,862.50 and upon the
determination of the final estimate the amount paid the claimant was the sum of
694,055.60, which included, according to the final estimate, an overpayment by
the State of West Virginia in the sum of 5,351.80. This final estimate covered
the period of work from December 21. 1960 to July 8, 1965 and is set forth as
the Road Commission Exhibit No. 6 with the transcript of the evidence.
Practically all of the work under the contract was performed between the middleef 1959 and the
middle of 161, and all exhibits filed by the claimant with its testimony
are dated in 1959 except as to a
48 REPORTS
STATE COURT OF CLAIMS {W. VA.
quantity of materials estimate made by
Wheeler Associates, Inc. in December 1965, approximately six months prior to
the filing of the claim with the Attorney General. The State Road Commission
denied the validity of claimanfs claim as to every detail.
There seem to be no particular legal questions involved in the claim except the
effect of the lack of written evidentiary proof by the claimant of the several
items for which he demands payment and the effect of such lack of proof in the
consideration by this Court of the several claims of the claimant, and except
to say that such lack of written change orders or supplemental agreements in
writing in which the State Road Commission agreed to recognize and pay for the
claims of the claimant is in our opinion a material, if not fatal, defect in
such proof. However, the Court in this case is not confining itself to strict
legal rules of admissibility of evidence but is being governed primarily by the
question of the justness of the claim, as viewed by it from all the evidence
adduced. However, we do not sanction laxity on the part of contractors and
others dealing with the State who should proceed orderly in their transactions
and obtain proper authority in writing for additions to or changes in
contracts.
The claimant’s claim of $46,564.80 is made up of nine separate items as
follows:
(1) $787.50 for an error claimed in calculating the amount of unclassified
excavation;
(2) $6,174.75 to cover the cost of removal of additional dirt occasioned by an
alleged slide in the hillside adjacent to the work contracted for;
(3) $3,449.25 for 4,599 cubic yards of stone and rock removed from outside the
borrow pit area;
(4) $8,000.00 for cost of obtaining granular material to meet specifications
for concrete cribbing;
(5) $1,800.00 cost of double handling of material due to a foot bridge
obstruction;
(6) $3,000.00 cost of building a detour and maintaining traffic around bridge
over expressway;
(7) $5,316.00 for extra work required to dispose of sewers and sewer water and
rental of equipment for such purposes;
W. VA.]
REPORTS STATE COURT OF CLAIMS 49
(8)
$9,885.00 on account of an alleged delay
of approximately one month by the State Road Commission in determining whether
material stock piled by bridge boulders would compact according to the Road
Commission specifications as to moisture contents;
(9) $8,152.30 for 500 cubic yards more concrete than the estimated quantities,
the same being the amount claimant claims it was penalized because of State
Road Commission’s decision that the concrete did not meet specifications.
There are several factors which have weighed more or less in this Court’s
consideration of the several items of this claim, one of which is that the
State Road Commission has allowed and paid to the claimant more than
$100,000.00 over and above the original contract amount, which amount the Road
Commission says is an overpayment of $5,351.80. The testimony of the principal
witness for the claimant, its Project Manager, was in regard to transactions
with or complaints to the State Road Commission officers or employees about six
or seven years prior to the filing of the claim before the Attorney General and
was made principally from what he described as his or the claimant’s diary of
the progress of the work done. There were no change orders or other writings by
which the State Road Commission recognized or bound itself to pay for the items
claimed by the claimant, although there were some letters purporting to
complain of and to ask for extra payment for several of the items. There were
few disinterested witnesses testifying as to important facts relating to the
items of the claim of the claimant, and there appears to have been no objection
to or rebuttal at the time the final settlement was made in July 1965, which
final settlement was made according to State Road Commission witness J. M.
Moss, who was the Senior Office Engineer in the Central Construction Office of
the State Road Commission, and who testified that such final estimate showed
all of the payments made to the claimant and the resuiting overpayment made by
the state, and whose testimony was that “the amount due to the State of
$5,351.80 is the result of the final review that has been made as the result of
a meeting of the personnel of the district and representatives of the
contractor.”
50 REPORTS
STATE COURT OF CLAIMS [W. VA.
Reviewing the testimony of the witnesses for both the claimant and the State,
we find considerable conflict with no real preponderance on the side of the
claimant and clearly a great lack of anything in the nature of documentary
evidence, unless self-serving diaries can be so classified. We fail to see from
the over 200 pages of the transcript of the testimony clear proof that the
claimant was either substantially misled or wrongly advised as to his
obligations under the contract, or that the State Road Commission agreed to the
matters involved in claimant’s petition. To review and specify in detail or
outline the insufficiency of the statements of the witnesses is not in order
because statements taken out of context would not be fair and we cannot and
will not attempt to burden this opinion with lengthy quotes from the testimony.
Being triers of the facts as well as judges of the applicable law we must reach
our decision on the substance as well as on the details of the evidence
introduced. We do not infer any lack of verity on the part of any witness, but
we have reached the conclusion that the claimant has not as to any of the
separate nine items of its claim adequately proved that there has been either a
breach of the contract on the part of the State Road Commission or that the
claimant has been unfairly treated, or that the claimant has not been fully
compensated for its work and services under its contract on the project.
It is the conclusion of this Court that the claimant has not proven a clear
obligation for further compensation from the State, and this Court is of the
opinion and it is its judgment that the claim of the claimant in this case be
wholly disallowed.
Claim Disallowed.
W.VAI REPORTS
STATE COURT OF CLAIMS 51
Opinion issued January 17, 1968
JOHN
B. ROBBINS
V.
STATE ROAD COMMISSION
No. B-320(A)
and
HUBERT FOWLER
V.
STATE ROAD COMMISSION
No. B-320(B)
Claimants present in person
Thomas P. O’Brien, Assistant Attorney General, and
Robert R. Harpoid, Jr., for the State Road Commission Ducker, Judge:
The claimants in these two cases base their claims, which were filed with the
Attorney General, on the same facts with only differences in the amounts which
they ask of the State.
Gary G. Taylor, as an employee of the State Road Commission, was in May, 1963
the driver of a Road Commission truck which, because of defective brakes,
struck an automobile in which Audra Conner and her husband, Marshall Conner,
were passengers, and by reason of such accident the said Audra Conner was
killed and Marshall Conner was injured, The claimants were mechanics in the
employ of the State Road Commission and as such had worked on the brakes of the
truck so involved, and were by the impleading of the State Road Commission’s
insurance company made parties defendant to a suit brought by the Conners
against Taylor. Claimants employed counsel for their defense of such suit and
incurred costs of counsel fees in the sum of $759.00 and $859.00 respectively,
which, upon request of claimants to the State Road Commission for payment, the
Road Commission refused to pay.
52 REPORTS
STATE COURT OF CLAIMS [W. VA.
As the claimants were brought into the litigation by the insurance company for
the State Road Commission and were obligated to have counsel for their defense,
we are of the opinion to and do award John B. Robbins the sum of $759.00 and
Hubert Fowler the sum of $859.00.
Award to John B. Robbins $759.00.
Award to Hubert Fowler $859.00.
Opinion issued January 17, 1968
ALICE SARGIS and
SHUAL SARGIS
vs.
ADJUTANT GENERAL
(No. B-374)
J. Scott Tharp, for claimants.
Thomas P. O’Brien, Assistant Attorney General, for respondent.
Jone,, Judge:
These claims were filed before the Attorney General of West Virginia on
November 10, 1966, for personal injuries sustained by the claimant Alice
Sargis, property damage to the automobile of the claimant Shual Sargis, and for
medical expenses and other damages arising out of a collision between the
Sargis automobile and a tractor-trailer driven by Carl Ervin Barnett, a member
of the National Guard under the jurisdiction and employment of the Adjutant
General of West Virginia. Evidence on behalf of the claimants and the
respondent was heard by the Court on October 31, 1967.
The evidence shows that on November 18, 1964, Alice Sargis,
49 years of age, a resident of Ohio, attended a funeral in Lewis
County, West Virginia and thereafter parked her husband’s car,
a 1957 Plymouth, on the north side of Second Street, in the City
of Weston, near the intersection of the west line of Water
W. VA.]
REPORTS STATE COURT OF CLAIMS 53
Street. Second Street is approximately 25 feet wide and Water Street is
approximately 16 feet wide. The Barnett operated tractor-trailer, 38 feet long,
was traveling east on Second Street and turned north on Water Street. In making
the turn in the limited space afforded by the narrow streets, the
tractor-trailer swung across the intersection and the rear portion of the
trailer struck the left rear portion of the Sargis vehicle, and claimant Alice
Sargis was violently thrown about, striking her head and chest.
Claimant Alice Sargis returned by bus to her home in Akron, Ohio, on Friday,
November 20, 1964, and on the following Monday, five days after the accident,
she consulted Dr. Lauren M Brown, a general practitioner, who treated her with
physiotherapy, a cervical collar and traction. She suffered considerable pain
and was unable to perform her usual household work for a long period of time.
Treatments continued to the date of the hearing. This claimant also was examined
by an orthopedic physician, Dr. H. W. O’Dell. As late as July 22, 1967, Dr.
O’Dell re-examined this claimant and stated his opinion that she will have a
mild permanent disability of approximately 10 to 15 percent.
Although Barnett says that he did not see the claimants’ automobile, we find no
positive evidence to contradict the claimants’ showing that the Sargis
automobile was egally parked in a parking meter space. The record shows that
the respondent’s driver was negligent and no evidence was adduced to show
contributory negligence. In our opinion, these are valid claims against the
Adjutant General of West Virginia, which in equity and good conscience should
be paid. The claimant Shual Sargis has claimed the sum of $1,707.11 for damages
to his automobile and for doctor, hospital and medical expenses. The sum of
$40.00 for x-rays reimbursed the claimant by insurance and $390.00 claimed for
transportation expenses are disallowed as not proved; and it is our judgment
that the claimant Shual Sargis should recover for the other items of his claim,
and he is hereby awarded the sum of $1,277.11.
It is our judgment that the claimant Alice Sargis also should recover, and she
is hereby awarded the sum of $2,000.00.
54 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued January 17, 1968
STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY ON BEHALF OF ROLLAND C. MULLENAX
V.
STATE ROAD COMMISSION
STATE OF WEST VIRGiNIA
(No. B-381)
Robert J. Louderback, Esq. for the Claimant
Thomas
P. O’Brien. Assistant Attorney General, and
Robert R. Harpold, Jr., for the State Road Commission Ducker, Judge:
Claimant on December 21, 1966 filed with the Attorney General of West Virginia
a claim of $88.79 for damages to the automobile of its insured, Rolland Carl
Mullenax, alleged to have been caused by rocks and boulders in U. S. Route 220
in Grant County, West Virginia, and the case was heard by this Court.
The facts as stipulated by counsel for the claimant and the Attorney General
were that at about 3:00 a.m. on January 3, 1965, when claimant was driving his
automobile, a 1963 Chevrolet, on U. S. Route 220, then covered with snow, near
Petersburg, Grant County, West Virginia, from his work to his home his car
struck rocks and boulders in the road, cast there as a result of work of the
State Road Commission in loosening with dynamite the bank of the road and a
sudden change in the weather. Claimant proved no knowledge of or notice to the
Road Commission of such facts or of any defective or dangerous condition of the
road or of any negligence on the part of the Road Commission. Nor was there any
evidence as to how claimant was driving his car or what the condition of
weather was, except that the road was covered with snow.
We are of the opinion that the claimant has not proved facts sufficient to
establish liability on the State, and we, therefore, disallow his claim.
Claim Disallowed.
W. VA.]
REPORTS STATE COURT OF CLAIMS 55
Opinion issued January 17, 1968
STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY ON BEHALF OF JAMES E. KEENE
V.
STATE ROAD COMMISSION
STATE OF WEST VIRGINIA
(No. B-390)
Robert J. Louderback, Esq. for the Claimant
Thomas P. O’Brien, Assistant Attorney General, and
Robert R. Harpolci, Jr., for State Road Commission Ducker, Judge:
This claim is for damages to an automobile caused by a rock chip from State
Road Commission work striking the wind shield of James E. Keene’s car,
resulting in damages in the sum of $24.81, the claimant being subrogated to the
rights of Keene as the owner of the car. The claim was filed with the Attorney
General and the case heard by this Court.
The evidence is to the following effect. On March 12, 1965, James E. Keene was
operating his 1964 Volkswagon automobile on State Route 119 on MacCorkie Avenue
in the vicinity of Evans Super Market in the City of Charleston when an
employee of the State Road Commission, patching holes in the surface of the
highway and chipping the concrete therein, caused a stone chip to strike the
windshield of the Keene automobile, thereby damaging the same to the extent of
$24.81 as the cost of repairing or replacing the windshield. There was no
evidence to attribute negligence on the part of Keene, who had been directed by
a flagman of the State Road Commission to pass the place of the work.
We are of the opinion to and do award the claimant the sum of $24.81.
Award of $24.81.
56 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued January 17, 1968
MARILYN STOLLINGS
V.
STATE ROAD COMMISSION
STATE OF WEST VIRGINIA
(No. B—344)
Glyn Dial Ellis, Esq. for the Claimant
Pete Barrow, Esq. for the State Road Commission
Ducker, Judge:
Claimant, Marilyn Stollings, alleged that she has been damaged in the sum of
$10,000.00 on account of injuries, disfigurement and disabilities she suffered
as a result of an automobile accident while she was operating a motor vehicle
on State Route No. 10-w, near Mitchell Heights in Logan County, West Virginia,
on June 6, 1964, the claim having been filed with and heard by and remained pending
before the Attorney General until jurisdiction was assumed by this Court.
The basis of the claim is primarily that the road was not safe for travel as it
had become slick by reason of tar “bleeding” out of the road surface causing
the road to be hazardous, and that when driving upon that road her car swerved
and slid, going round and round and finally over the hillside, injuring her
legs, arms and back.
The record shows that the particular part of the road where this accident
occurred was a blacktopped road, extending for about a mile from North Mitchell
Heights to Peck’s Mill Bridge, completed or resurfaced in April 1962 with tar
and mixed sand and stone on top. Evidence was introduced to show that a car had
wrecked on this road a “couple of weeks” after the construction because the
road got slick when it rained, and that signs had thereafter been put up
stating that the road was “Slippery When Wet.” There was also testimony to the
effect that several wrecks had occurred on this road, that the road would
“bleed” tar on hot days, and that once or more the Road Commission had put “red
dog,” meaning slate or burnt coal, on the road to rough it up.
W. VA.]
REPORTS STATE COURT OF CLAIMS 57
The evidence is undisputed that it had rained before or about the time of the
accident and that the road was damp, like a frost on it, and wet. Daniel
Carper, a disinterested witness, testified that he was going from Mill Creek to
Logan on his right hand side of the road and at a fairly level or graded snot
he saw claimant’s car coming Irom Logan and swerving on the highway in the
other lane, that is Carper’s left hand lane, and that he would estimate that
claimant’s car was traveling “anywhere from 40 to 50 miles an hour,” and that
he, Carper, was going 25 to 30 miles an hour as his wife was expecting very
shortly, although he thought 40 miles an hour would be safe.
The witness Kermit Flale said that he traveled this road twice a day and that
40 to 50 miles an hour was an unsafe speed for anyone who knew the road “or anyone
else whether they knew it or not, anyone who traveled it.” Alfred White, Jr.
testified that it was apparent that this road was “slick when it was wet,
frosted or snowed upon.” One witness stated that the accident occurred at the
bottom end of the hill as claimant’s car started going up the hill, but
claimant, who was pregnant when the accident occurred, said she came “to
Henlawson before she ran into rain and came on down the road and went up the
bank and just when I topped the bank my car started sliding, it started
sliding, it went around with me and—completely around, and went over the
mountain, over the bank,” and that she was going 35 miles an hour and that she
“drove that rate every day, it don’t matter if its hot or any time,” and
further it was drizzling rain at the time of the accident.
Claimant testified that she was hospitalized in Logan for six or seven weeks
and suffered greatly from her injuries and incurred considerable expense, the
amount of which is not fully or clearly shown, as well as permanent
disfigurement of her legs and arms.
A recital of other testimony and evidence we deem unnecessary, as the principal
and only question presented to this Court is whether the claimant has made out
a case of negligence on the part of State Road Commission in the maintenance of
the State Road on which this accident occurred.
There are several factors involved in the determination of the question
involved, namely, the type of road, the road main-
58 REPORTS
STATE COURT OF CLAIMS [W. VA.
tenance, the weather at the time of the accident and its effect both upon the
condition of the road and the speed at which the car was driven.
The road was definitely classified as a blacktopped highway. Tar and mixed sand
and stone were used to resurface it in 1962, and on one or more occasions slate
or burnt coal was used to roughen it. Claimant by unsatisfactory evidence tried
to prove that several accidents had previously occurred on it. Signs of
“Slippery When Wet” were posted. Whether the road was ‘bleeding” tar at the
time of the accident does not positively appear. Nor does other evidence of
either extra maintenance or any special lack of maintenance appear.
The weather was a drizzling rain and the road was slick, and claimant, who
drove it frequently, knew it was slick when it was wet.
The testimony of claimant and one of her witnesses was that claimant was
driving at a speed of 35 miles an hour and the speed limit was 55 miles an
hour. As hs been shown, Daniel Carper, the witness who saw the accident, said
claimant was driving 40 to 50 miles an hour. Another witness testified that 40
to 50 miles an hour on that road was unsafe whether the driver knew the road or
not. In determining whether a driver of an automobile has driven safely, the
lawful speed limit may or may not be a factor in such determination. Weather is
just as important and cannot be dismissed without serious consideration.
The evidence, we think, does not sufficiently show lack of proper maintenance
for that type of road and the fact that other cars have wrecked may be
corroborative in a limited way of specific fact showing negligence or lack of
maintenance. There are too many other probable causes for wrecks. We cannot
avoid believing that the speed at which the claimant was driving on a wet,
slick road which she well knew, which speed was testified to by a wholly
disinterested witness to be 40 to 50 miles an hour and unsafe, was the
proximate cause of this accident, unfortunate as it was for all concerned.
It is the conclusion of this Court that the claimant has not proven sufficient
facts to maintain her claim, and it is the
W. VA. REPORTS
STATE COURT OF CLAIMS 59
opinion of the Court that her claim should be, and it is hereby, disallowed.
Claim Disfllowed.
Opinion
issued January 17, 1968
DELOS TENNEY
V.
STATE
ROAD COMMISSION
STATE
OF WEST VIRGINIA
(No. B-.396)
Claimant present in person
Thomas P. O’Brien, Assistant Attorney General, and
Robert R. Harpold, Jr., for State Road Commission Ducker, Judge:
Claimant, Delos Tenney, owner of a farm on State Route 2 between Sago and
Tallmansviile, in Upshur County, West Virginia, filed with the Attorney General
his claim for $225 for loss of cattle by poisoning from weed spraying of that
road by the State Road Commission.
The evidence in this case presented to this Court shows that the claimant was
raising three calves on his farm on State Route 2, and that in the summer of
1966 the State Road Commission in order to kill weeds along that highway
adjacent to claimant’s property sprayed the highway with a chlorinated
hydrocarbon which went upon claimant’s land and caused two of claimant’s calves
to die of acute toxemia. The one calf that did not die was sold for $137.00.
The evidence is not clear as to just what was the value of the two dead calves.
There is nothing in the evidence to contradict the testimony of the witnesses
for the claimant, and we are of the opinion that his claim in the amount of
$225.00 is unquestionably reasonable and we, therefore, award the claimant,
Delos Tenney, the sum of $225.00.
Award of $225.00.
60 REPORTS
STATE COURT OF CLAIMS [W. VA.
Ophiion issued January 31, 1968
REMINGTON RAND OFFICE SYSTEMS
DIVISION,
SPERRY RAND CORPORATION
vs.
DEPARTMENT OF WELFARE
(No. D-43)
Hanna.
Bias, Carman and Friedberçj,
Donald C. Carman, for claimant.
Thomas P. O’Brien, Assistant Attorney General, for respondent.
Jones, Judge:
This claim was filed before the Court of Claims on December 11, 1967. At the
same time there was filed a Stipulation, executed in behalf of the respondent
by L. L. Vincent, Commissioner of the Department of Welfare, and C. Donald
Robertson, Attorney General of West Virginia, which Stipulation recites that
the respondent, ***having made a detailed analysis of and investigation into the
facts and circumstances giving rise to said claim, stipulates the facts and
amounts of damages as alleged in claimant’s petition as being correct***.’
The claimant’s petition and its exhibits show that between October, 1964 and
June, 1965, the claimant agreed to sell to the respondent certain equipment for
the filing and retrieval of records, known as Remington Rand Lektrievers, to be
delivered and installed in the district offices of the respondent. All purchase
orders provided for the delivery and installation of the Lektrievers at
specified locations. After the claimant had shipped the equipment from its
factory in New York to the West Virginia locations, the respondent notified the
claimant that suitable space for the installation of the Lektrievers was not
available and that the claimant would have to take back and store all of the
equipment until installation space could be provided. The claimant did not have
adequate storage facilities and it was necessary to employ local haulers and
storage companies to remove and store the equipment, and, when
W. VA.J
REPORTS STATE COURT OF CLAIMS 61
space was finally available, the
equipment was re-delivered to the various offices of the respondent. Copies of
the storage, handling and hauling invoices in the total amount of $13,245.47,
all of which are shown to have been paid in full by the claimant, were filed as
exhibits with the respondent’s petition. The claimant invoiced the Department
of Welfare for said storage, handling and hauling charges, and the invoice was
approved by the respondent and forwarded to the State Auditor, who refused
payment on the ground that the charges did not correspond with the terms of the
purchase orders.
On the basis of the claimant’s petition, together with its exhibits, and the stipulation
of facts above referred to and filed with this Court, and after examining and
considering the same, it is the opinion ol the Court that the facts set forth
in the petition do present a claim within the jurisdiction of this Court, and
the stipulation of facts filed herein is hereby accepted and approved.
After further consideration of the facts set forth in the petition and the
amount claimed by the claimant as reimbursement for sums advanced by the
claimant for the storage, handling and hauling of equipment, as a result of the
respondenfs failure to provide adequate facilities for the installation of the
equipment ordered by the respondent and delivered by the claimant to the
locations specified in the purchase orders, the Court is of the opinion that
such facts do constitute a valid claim against the State of West Virginia which
in equity and good conscience should be paid, and it is our judgment that the
claimant, Remington Rand Office Systems Division, Sperry Rand Corporation,
should recover the amount of its claim, and an award is made to said claimant
in the amount of $13,245.47.
62 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued February 15, 1968
W. A. ABBITT COMPANY, LORY PLANING
MILL
COMPANY, ASBESTOS AND INSULATING COMPANY,
HUNT ELECTRIC COMPANY, B&N PLUMBING & HEATING
COMPANY, HARRIS BROTHERS ROOFING COMPANY,
WORTH STURGEON AND FLOOR FASHIONS, INC.,
D/B/A ARROW RUG COMPANY
vs.
DEPARTMENT OF WELFARE
(Nos. C-37, C-36, C-38, C-39, C-40, C-41, C-42, C-43)
Henry C. Bias, Jr., James C. Reed, Jr., Larry W. Andrews,
Albert F. Good, Hershel R. Hark.
Edward H. They and J, M. Holcomb, for
claimants.
Thomas P. O’Brien, Assistant Attorney General, for respondent.
Jones, Judge:
These claims were filed before the Attorney General during the year 1965 for
work performed and materials furnished in the renovation of the Conlon Bakery
Building in Charleston, West Virginia for the purpose of providing offices for
the Department of Welfare. A hearing of these claims was deferred pending the
outcome of an action instituted in the Circuit Court of Kanawha County
involving some of the same issues. The claimant, W. A. Abbitt Company, was the
general contractor and the other claimants were subcontractors; and as the
claim of W. A. Abbitt Company encompasses all of the claims of the
subcontractors, the several claims were consolidated and heard together by this
Court on November 29, 1967.
The Conlon Bakery Building, together with its parking area and other incidental
facilities, occupies an entire city block and contains approximately 35,165
square feet of floor space on two floors. By agreement dated June 16, 1964, it
was leased by The Todd Company to the Department of Welfare for yearly terms
totaling ten years at a rental of $78,088.25 per year, of which 6,000,00 was
allocated to parking and $7,088.25 for the unimproved building at $2.05 per
square foot of floor space. This
W. VA.]
REPORTS STATE COURT OF CLAIMS 63
rental contemplated the installation of heating and air conditioning by the
lessor, and the amortization of tenant alterations over a ten-year period.
Then the claimant W. A. Abbitt Company entered into two agreements, one with
The Todd Company for the installation of heating and air conditioning, and the
second with the Department of Welfare, evidenced by a letter of intent by the
Department dated June 19, 1964. This letter authorized the claimant W. A. Abbitt Company to proceed with the work as outlined
on the basis of cost plus ten per cent profit, payments to be on a monthly
basis. A formal contract by and between the State of West Virginia, State
Department of Welfare, and W. A. Abbitt Company was executed on July 31, 1964,
being signed in the name of the State by W. Bernard Smith, Commissioner of the
Department of Welfare, but the same was not approved as to form by the Attorney
General. The contract set out an estimate of the cost of work to be performed
in the amount of $25,000.00, but provided that “it is expressly understood,
however, that neither the Department or the contractor guarantees the
correctness of the estimate. Should any changes be made, after the contract has
been signed, which increase the above estimate, it shall be modified in writing
accordingly.” At that time the cost of work already performed was approximately
$33,000.00 and the estimate was in the area of $60,000.00. but Robert E.
Sheets, Vice-President of W. A. Abbitt Company was persuaded to sign the
contract upon the assurance that the same was an open-end agreement which would
be supplemented later. The contract was prepared by Robert Kaufman as attorney
for the respondent, and previously had been signed and acknowledged by
Commissioner Smith who was out of town and would not return for two weeks.
Sheets was also admonished that no payments could be made to the contractor
until some kind of written contract had been executed. Efforts of the claimant
W.
A. Abbitt Company to obtain further assurances in writing were to no avail, but
the respondent continuously importuned the diligent prosecution of the
construction work.
All of the work was done on an emergency basis, due to the critical need of the
Department of Welfare for office space. Department personnel were moved into
the building shortly after work started and continued to move in as the work
pro-
64 REPORTS
STATE COURT OF CLAIMS LW. VA.
gressed. As the need for space
increased, the demands by the Department of Welfare upon the contractor for
additional construction and renovation also increased. A project to accomodate
two divisions of the Welfare Department was expanded to meet the requirements
of seven divisions. No architect was employed and no plans or specifications
were furnished. All work was on a day to day basis under the direction and
supervision of the Department of Welfare. Work commenced in June, 1964, and
continued without interruption until November 2, 1964, when work was stopped.
At this time, the renovation work had been largely completed, but all invoices
submitted by the claimant W. A. Abbitt Company had been rejected by the Auditor
on the grounds that the work had exceeded the contract price and that the
contract had not been approved by the Attorney General.
In order to ascertain to what extent The Todd Company was responsible for the
work done, mechanics liens were filed and in due course a suit to enforce said
liens was instituted in the Circuit Court of Kanawha County. By order entered
on December 7, 1967, said Circuit Court found The Todd Company liable to W. A.
Abbitt Company and three of the subcontractors in the aggregate amount of
$27,309.00, and enforced the mechanics liens to that extent; and said Circuit
Court further found that the remaining claims of W. A. Abbitt Company and its
eleven subcontractors “constitute a valid obligation of the West Virginia Department
of Welfare owing to the respective parties and are not obligations of The Todd
Company, defendant herein.”
Seven of said eleven subcontractors, being parties to the action, were awarded
judgments against said W. A. Abbitt Company as follows: Asbestos and Insulating
Company, $11,490.38; Worth Sturgeon, $11,344.86; Harris Brothers Roofing
Company, $12,290.65; B&N Plumbing & Heating Company, $31,875.38; Floor
Fashions, Inc. (Arrow Rug Co.), $7,925.61; Hunt Electric Company, $34,198.83;
and Pearl Meeker, administratrix C.T.A. of the estate of Bernard 0. Meeker,
deceased, $7,458.60. The Circuit Court also listed the claims of the remaining
four subcontractors who were not parties to the proceeding, as follows: E. E.
Moore, $1,190.12; R. W. O’Dell, $2,062.14; Elbert A. Swain, dba Swain Window
Cleaning Serv
W. VA.j
REPORTS STATE COURT OF CLAIMS 65
ice, $2,196.00; and R. B. Wyatt &
Sons, Inc., $2,575.00. Recoveries under the mechanics liens reduced the
aggregate claim to $213,585.97. From the evidence adduced at the hearing, it
appears that the amount of business and occupation tax included in the claim
should be reduced in the sum of $1,074.62 to conform with the legislative
reduction in the rate of tax after the claim was filed, thereby further reducing
the total amount claimed to $212,511.35.
There were no defense witnesses, the respondent relying on the legal
proposition that the parties failed to comply with West Virginia Code 5A-3-15,
which provides:
“Contracts shall be signed by the commissioner in the name of the State. They
shall be aproved as to form by the attorney general. A contract that requires
more than six months for its fulfillment shall be filed with the State
auditor.”
The respondent contends that (1) no valid contract was ever entered into
between the parties; (2) that Commissioner Smith did not act within the scope
of his authority; and that (3) the claimant was required to take notice
of the extent of Commissioner Smith’s authority. In this case, Commissioner
Smith did have authority to enter into a contract with the claimant, although
his authority was not exercised in accordance with all legal requirements.
Furthermore, the acts of a public officer improperly performed may be ratified
and validated. 67 C.J.S., Officers, § 102 and 106. The facts of this case clearly establish
ratification. The State has accepted the benefits of the work done and
materials furnished, and has occupied and used the subject premises for
approximately three and one-half years without any compensation to the
claimant. About two hundred employees work in the offices constructed by the
claimant. There is no dispute as to the amount of work done and materials
furnished, the quality of materials or workmanship, or the amount of the
aggregate claim. Based on comparable rentals in the City of Charleston, the
respondent obtained an office building at a rental figure, $2.84 per square
foot, which, taking into account the amortization of renovation costs, is shown
to be fair and reasonable.
Under the facts of this case, the respondent’s defense is a purely technical
one which we believe must give way to West
66 REPORTS
STATE COURT OF CLAIMS [W. VA.
Virginia Code 14-2-13 which extends
the jurisdiction of this Court to claims “which the State as a sovereign
commonwealth should in equity and good conscience discharge and pay.” If this
claim had arisen from a transaction between private individuals or
corporations, it clearly would be an enforceable obligation.
After consideration of the record, the evidence and exhibits offered on behalf
of the claimant, and the briefs and arguments submitted by counsel for both the
claimant and respondent, the Court is of opinion that the claimant has proved a
valid claim against the Department of Welfare which in equity and good conscience
should be paid; and it is our judgment that the claimant W. A. Abbitt Company
should recover, and an award is made to said claimant in the amount of
$212,511.35.
Opinion issued April 24, 1968
WALTER L. BLANKENSHIP,
vs.
STATE ROAD COMMISSION
OF WEST VIRGINIA
(Claim No. C-26)
No appearance on behalf of claimant.
Thomas P. O’Brien, Assistant Attorney General, and
Robert R. Harpold,
Jr., Esquire, for respondent.
Singleton, Judge:
This claim was filed before the
Attorney General on June 28, 1967, and transferred to this Court after July 1,
1967, for its consideration and decision. The claim is in the amount of 68.61
for damages sustained to claimant’s automobile as a result of rock being thrown
through its windshield as a result of respondent’s mowing operations. The
damage is alleged to have occurred in Cabell County, near Huntington, West
Virginia. This case was placed on the hearing docket of this Court and called
for hearing on the 22nd day of March, 1968.
W. VA.J REPORTS STATE COURT OF CLAIMS 67
Upon the case being called for hearing there was no appearance for the
claimant. The Assistant Attorney General and the counsel for the State Road
Commission tendered to the Court a stipulation advising that an investigation
of the allegations contained in the claimant’s petition filed herein had been
found to be true and correct and the amount set forth for compensation of the
damages sustained to be reasonable and the respondent had reduced such a
stipulation to writing and tendered it to the Court together with an order
filing same.
Upon consideration of the stipulation, and there being no objection on the part
of the Attorney General, it was the opinion of the Court that same should be
ordered filed in this proceeding.
The facts as stipulated by counsel for the claimant and the Attorney General
were that on or about the 1st day of October, 1966, the State Road Commission
employees for and on behalf of the State of West Virginia were operating a
power lawn mower on the State Road right-of-way on U.S. Route 60, in Cabell
County, near Huntington, West Virginia; that in the operation of said power
lawn mower a rock was negligently caused to he thrown by said mower, said rock
striking the windshield of an automobile owned and operated by Walter
L. Blankenship, the claimant herein, whose address is 1608 Beech Street,
Kenova, West Virginia. There is no evidence in the petition or the record
before this Court of any negligence on the part of the claimant nor of any
action on his part that might lawfully preclude his recovery.
Upon consideration of the petition, the exhibits in the file, the stipulation,
and the statements of counsel for the respondent, the Court is of the opinion
that the facts set forth in the petition do present a claim within the jurisdiction
of the Court; and the Court is of the further opinion that the allegations of
said petition as stipulated by the respondent do constitute a valid claim
against the State of West Virginia that in equity and good conscience should be
paid and the Court is of the further opinion and it is our judgment that the
claimant, Walter L. Blankenship, should recover, and we do hereby award the
said claimant the sum of $68.61.
68 REPORTS
STATE COURT OF CLAIMS [W.
VA.
Opinion issued April 24, 1968
C. A. ROBRECHT COMPANY
V.
DEPARTMENT OF MENTAL HEALTH
STATE OF WEST VIRGINIA
(No. D-11)
Joseph M. Brown, Esq. for the Claimant
Thomas P. O’Brien, Assistant Attorney General, for the State Ducker,
Judge:
The Department of Mental Health ordered for Lakin State Hospital, at Lakin,
West Virginia, on November 12 and November 27, 1964 from the claimant, C. A.
Robrecht Co. Inc., of Parkersburg, West Virginia, three orders of frozen foods
and other vegetables, which orders were filled and delivered according to receipts
taken at the hospital for the use of the patients there. The total amount of
the invoices is $170.78 which has not been paid because invoices were not
received by the Department prior to the end of the fiscal year 1964-65, which
the Department says would have been paid if the invoices had been received in
time for payment within such fiscal year. Claimant also claims interest at 6%
on the account in the sum of $27.38.
The Department of Mental Health by its Director and the Attorney General filed
their Answer herein admitting the validity and correctness of the claim except
as to interest thereon, and agreeing to submit the claim on the pleadings.
As the facts are admittedly true, and as we are of the opinion that the failure
to file the claim with the Department within the fiscal year is not sufficient
to justify the State in refusing to pay an otherwise just claim, we will
sustain the claim, except as to interest, which under the statute this Court
cannot allow in any case unless the contract in the matter expressly provides
for the payment of interest.
Wherefore, this Court awards the claimant the sum of $170.78.
Claim awarded.
W. VA.1
REPORTS STATE COURT OF CLAIMS 69
Opinion issued April 24, 1968
C. J. LANGENFELDER & SON, INC.,
A CORPORATION,
vs.
THE STATE OF WEST VIRGINIA AND
THE STATE ROAD COMMISSION OF WEST VIRGINIA.
(Claims Nos. B-292, 292— (b))
George P. Sovick, Jr., Esquire, Charleston, West Virginia; Robert D. Myers, Esquire; Frank A. Simon, Esquire; Rhoads, Sinon,
and Reader,, Harrisburg,
Pennsylvania, for claimant.
John L. Ward, Esquire, and Philip
J. Sheets, Esquire, for respondent.
Singleton, Judge:
These claims, considered by the Court as one, were filed before the Attorney
General respectively on December 3, 1965, and February 9, 1966, and the
evidence of the claimant and respondent offered and the record made before the
Claims Examiner for that office at hearings held in Charleston, West Virginia,
on June 13, 14, and 15, 1966,; and the deposition of Mr. Nathan November was
taken on June 17, 1966, in New York City. No opinion was rendered by the
Attorney General on this claim and the entire record and case file was delivered
to this Court after July 1, 1967, for consideration and decision.
The Claimant, C. J. Langenfelder and Son, Inc., is a Maryland Corporation duly
authorized to carry on business in the State of West Virginia, has engaged in
all types of heavy construction over the past 50 years and was qualified by the
State Road Commission of West Virginia to bid and perform work on road
construction projects in West Virginia. On July 16, 1963, claimant filed a bid
for the construction of the Wheeling Tunnel on a section of Interstate Route 70
in Ohio County, West Virginia, and was awarded a contract for such construction
on July 24, 1963, on the basis of its low bid of $6,961,144.20. This project,
designated No. 1-70-1 (12) 1 by the State Road Commission, was approximately
1,425 feet in length and the contract con-
70 REPORTS
STATE COURT OF CLAIMS [W. VA.
tamed the usual provision that time
was of the essence of the contract and the claimant agreed to complete same in
720 calendar days. Claimant began work on the project on or about August 21,
1963, and completed the boring of the tunnels by March 15, 1964, but concreting
operations could not be commenced inside the tunnels until May 20, 1964,
because of a delay on the part of the respondent in approving the concrete mixture.
All of the foregoing facts set forth in the petition of the claimant in
Paragraphs 1 through 6, together with the special provisions of the contract
relating to the removal forms as set forth in Paragraph 10 thereof, having been
stipulated by claimant and respondent.
On July 16, 1964, the record discloses that the claimant began pouring
operations on the concrete tunnel linings of the two tunnels, the claimant
having previously performed initial concreting operations in the formation of
anchor curbs in said tunnels and the forms for these anchor curbs having been
stripped by claimant within 24 hours after completion with no objection by
respondent. In pouring the concrete tunnel linings claimant used two specially
constructed forms, (one for each tunnel) purchased specifically for this
project. The record further discloses that on July 24, 1964, P. R. Hinkle,
Project Engineer for the respondent, advised claimant by letter that claimant
was removing the tunnel forms permaturely contrary to the provision of the
contract and that the forms could not be removed for fourteen days or until the
strength of the concrete had reached 2000 pounds per square inch. Claimant
replied to this letter on July 28, 1964, asserting that the standard
specifications referred to by Mr. Hinkle were overridden by the special damage
provision of the special provisions of the contract.
The claim here considered is in the total amount of $293,432.08; $207,118.13
being for additional costs and expense due to maintenance of men and equipment
during a thirty-two day shut down period, and the resultant additional cost of
the tunnel concreting operations, all of said expenses being attributed to
respondents’ insistance upon erroneous interpretation of the specifications;
$8,077.30 for additional costs incurred by the claimant to its subcontractor,
Delta Concrete Company, by reason of said delays; $30,042.99 for additional
costs of back-
W.VAI
REPORTS STATE COURT OF CLAIMS 71
filling operations as a direct result of materials erroneously represented by
respondent to be of a certain compaction classification in the specifications,
and $48,193.66 as reimbursement for the cost of additional cement required to
be used in the concrete mix by the claimant as result of a change in the concrete
formula to be used after the bidding and letting of the contract and
immediately prior to the beginning of concreting operations.
The respondent denied all the claims and took the position that the standard
specifications incorporated by reference into the contract superseded the
special provisions set forth therein relating to stripping of forms; that the
claimant had mistakenly relied upon representations of officials of the
respondent relating to the formula for the concrete to be used; that the additional
expense, costs and delay was solely the fault of claimant and that claimant by
reason of its cessation of activities under the contract had therefore breached
the contract and was estopped to make any claim.
No issue was raised by respondent concerning the reasonableness of the sums
alleged and proved by claimant to represent the additional costs arid expense
forming the basis of this claim.
There is further no evidence that any of the concrete placed in the tunnels on
this project was ever in fact rejected or ordered removed for any reason by the
respondent.
As to the assertion of the respondent that the claimant is estopped by reason
of its cessation of tunnel concreting operations on August 26, 1964, resumed on
September 28, 1964, this Court is of the opinion that this contention is
without merit. The record discloses that the claimant did cease tunnel
concreting operations on August 26, 1964, but did continue with other
operations on the project. It ceased operation on the ground that respondent
was erroneous in interpreting the specifications relating to the stripping of
forms and immediately undertook negotiations to resolve the dispute. This Court
is of the opinion that the respondent may well have invoked the forfeiture
provisions of the contract against the claimant, but is further of the opinion
that this right was waived when respondent elected not to do so, modified its
position, and so advised claimant by telegram.
72 REPORTS
STATE COURT OF CLAIMS [W. VA.
Without embarking upon a laborious narration of the voluminous testimony
offered on behalf of claimant and respondent, the documentary evidence tendered
by the parties, the exhibits and expert reports offered, the deposition of
Nathan November, the memorandums fled on behalf of claimant and respondent, the
several motions to dismiss filed on behalf of respondent and the arguments of
counsel, but after a careful examination of all of same, and after full
consideration thereof, and the principles of contract law applicable and raised
by the parties, the Court is of the opinion that the following premises were
substantiated in law and by a preponderance of the evidence:
(1) That the special provisions of the contract relating to the stripping of
forms governed operations on this project and that no provision of the standard
specifications incorporated therein was shown to be applicable thereto;
(2) That the back fill materials to be excavated from the project and
classified in the specifications on which the claimant bid as A-2-4 material by
the respondents’ personnel, did not, in fact, meet this compaction
classification;
(3) That claimant did not prove by a preponderance of the evidence that all of
its additional winterizing expense was solely due to respondents’ action or
inaction, the construction progress schedule filed by the claimant plainly
contemplating certain winter concreting operations;
(4) That the claimant is entitled to reimbursement for the additional cost
occasioned by the change in the number of bags of cement required to be used in
the concrete mix;
(5) That the motions to dismiss as to the claims of Delta Concrete Company, a
subcontractor of claimant, which claims are here filed as part of claimant’s
petition and set forth as an obligation of claimant, on the ground of lack of
privity of contract on the part of Delta Concrete Company, and on the further
ground of failure to exhaust all legal remedies, are without merit.
Therefore, after consideration of all of the evidence and exhibits offered on
behalf of the parties and the memoranda of authority and the arguments of
counsel, this Court is of the
W. VA.j
REPORTS STATE COURT OF CLAIMS 73
opinion that claimant has proved a valid
claim against the State Road Commission of West Virginia, which the State of
West Virginia as a sovereign commonwealth, should in equity and good conscience
discharge and pay; and it is therefore our judgment that the claimant should
recover the sum of $182,802.13 for losses sustained and additional expense
incurred in the tunnel concreting operations, which sum includes a portion of
the winterizing expense claimed; the sum of $30,042.99 for additional back
filling expense incurred by reason of the failure of the excavated materials to
meet the respondents’ representations, and the sum of $56,270.96 as
compensation for additional costs incurred by claimant to its subcontractor,
Delta Concrete Company, for winterizing expenses and the additional cement
required by reason of the formula change; and a total award is hereby made to
said claimant in the amount of
$269,116.08.
Opinion issued April 24, 1968
CHARLES L. SWISHER
vs.
STATE TAX COMMISSIONER
(No. C-li)
Thomas P. O’Brien, Assistant Attorney General for respondent. Jones,
Judge:
This claim was filed before the Attorney General of West Virginia on March 2,
1967.
At the hearing held by this Court on March 21, 1968, counsel for the respondent
stated that there being no factual issues involved and the claimant having
agreed thereto, this claim was submitted for decision upon the record.
It appears from the record that on or about July 29, 1965, the claimant filed a
claim before the State Tax Commissioner for a refund of business and occupation
taxes overpaid by reason of reporting errors for the years 1958 to 1961,
inclusive. A refund in the amount of $145.81 was made for the years 1962,
74 REPORTS STATE COURT OF CLAIMS [W. VA.
1963 and 1964. However, a refund for the years 1958, 1959, 1960 and
1961 for aggregate overpayments of $288.57 was denied on the
ground that the claim in that amount was barred by the statute of limitations.
Chapter 11, Article 1, Section 2a of the Code of West Virginia provides as
follows:
“On and after the effective date of this section [June 8, 1951], any taxpayer claiming to be aggrieved through being
required to pay any tax into the treasury of this State, may, within three
years from the date of such payment, and not after, file with the official or
department through which the tax was paid, a petition in writing to have
refunded to him any such tax, or any part thereof, the payment whereof is
claimed by him to have been required unlawfully; and if, on such petition, and
the proofs filed in support thereof, the official collecting the same shall be
of the opinion that the payment of the tax collected, or any part thereof was
improperly required, he shall refund the same to the taxpayer * * *“
The claimant having failed to file his
claim for a refund within the period of three years provided by the statute, it
is contended by the respondent State Tax Commissioner that the claimant has
slept on his rights and thereby has forfeited his claim.
While we recognize that the prescribed limitation would merely bar the remedy
and would not extinguish a moral obligation, there is no showing in the record
that the claimant was misled in any way or that there were any other
extenuating circumstances which would involve the conscience of the State. The
Court is of opinion that it should not, in effect, extend the time for making
application for a refund of taxes; and that equity and good conscience do not
require the relief prayed for in this case. Accordingly, it is our judgment
that this claim should be and the same is hereby disallowed.
W.VA.] REPORTS STATE
COURT OF CLAIMS 75
Opinion issued April 24, 1968
DELBERT THOMPSON, Administrator of the
Estate of Creola
Thompson, Deceased,
V.
STATE ROAD COMMISSION
(No. C-9)
Jerry Cook, Esq. for the Claimant
Robert R. Harpold,
Jr., Esq. and
Thomas P. O’Brien, Assistant Attorney General, for the State
DUCKER, JUDGE:
Delbert Thompson, the duly qualified Administrator of the Estate of Creola
Thompson, deceased, filed this claim, asking $25,000 as damages against the
State Road Commission of West Virginia on account of the death of said Creola
Thompson, who as a passenger in claimant’s car, was killed as a result of an
automobile collision between the car owned by Delbert Thompson, husband of the
said Creola Thompson, and driven by Monty Dean Thompson, his son, and a car
owned and driven by one Hassel Justice at or upon the Lick Creek Bridge on the
Lick Creek Road in Boone County, West Virginia, on July 18, 1965.
The claimant bases his claim upon allegations that the State Road Commission
had allowed large weeds and brush to grow up along the road leading to the Lick
Creek Bridge and had failed to erect signs indicating that the bridge was a
one-way bridge and had failed to keep the bridge in a proper state of repair.
The evidence in the case is substantially to the following effect.
Monty Dean Thompson, who was 17 years old at the time of the accident, had
driven the family car with his mother, Creola Thompson, and his sister from
Dayton, Ohio, to their home on Lick Creek, and had approached and driven upon
the bridge, which was some two miles from Danville, West Virginia, and that the
front wheels of his car were about to
76 REPORTS
STATE COURT OF CLAIMS [W. VA.
pass off the far end of the bridge after passing over it when he collided with
a car owned and operated by Hassel Justice, resulting in the injuries to and
death of the said Creola Thompson.
The Thompson car was traveling, it is claimed at approximately 10 miles an hour
at the time of the collision and the Justice car was traveling between 25 and
35 miles an hour immediately before or at the time of the collision. A member
of the State Police testified that there was
about a 200 foot straight stretch of
road before entering to the left a turn approaching the bridge and after such
turn there was a distance of 30 to 40 feet before reaching the bridge. The road
on the other side of the bridge, from which Thompson was approaching the
bridge, had a visibility of approximately 80 to 90 yards to the bridge on that
side. The width of the bridge was 12 feet, 9 inches, and the width of each car
was 6 feet, 3 inches; so for anyone traveling in either direction it was
practically a one- way bridge, although two cars could, with only a three inch
margin, pass each other. The exact condition of the weather on that day is not
wholly certain, except that it was not raining. but that it had rained and the
road was slick.
The claimant, his son and Hassel Justice had all lived in that vicinity many
years and were accustomed to travel almost daily the road and bridge in
question, and they knew its turns and condition, particularly the fact that
they all considered the bridge a one-way bridge. While they testified that there
were high weeds and brush on either side of the road, they were not prevented
from seeing forward on the road or from seeing within reasonable distances each
other’s car approaching. As neither driver of the cars saw the other until it
was too late to avoid the collision, it necessarily follows that at least one
of them was not exercising due care in his driving, most probably Hassel
Justice who admitted he was going between 30 and 35 miles an hour in his
approach to the bridge.
Without passing upon the question as to who had the right of way, it would seem
to us that inasmuch as the Thompson car was already on the bridge and about to
go off of it and that Hassel Justice, knowing the narrowness of the bridge, was
traveling at a speed of at least 25 to 30 miles an hour in his approach to the
bridge, he should have slowed down and given
W. VA.]
REPORTS STATE COURT OF CLAIMS 77
right of way to the Thompson car. Pictures of the bridge and approaches
introduced in the evidence clearly show that neither the bridge nor the road
were out of repair and the collision would not have taken place had the parties
to the collision exercised reasonable and proper care under the circumstances.
The record shows that a suit was instituted by Hassel Justice against the claimant
and the claimant filed a counter-claim against Justice in that case, and when
the case came on for trial they took releases from each other, and that they
did not prosecute their claims for the reason that claimant said he knew he
could not realize anything from Justice because of the latter’s financial
condition and because Justice had no liability insurance.
The question resolves itself into whether the State Road Commission had been
sufficiently negligent to be held morally responsible for the damages
occasioned by this collision, and as we have indicated, the claimant’s claim is
based partly upon its failure to have road markers indicating a one-way bridge.
The lack of such signs does not constitute negligence, as was stated in the
opinion in the case of the state ex
Tel. Vincent v. Gainer, (W.Va.),
decided December 12, 1967, 158 S. E. 2d 145. Nor do we think that the growth of
weeds and brush along the side of a road, not in the passageway of a road,
constitutes negligence, or such negligence on the part of the Road Commission
as rendered it responsible for collisions on the road.
As all the parties well knew this well-traveled road and bridge, either the
claimant or Justice or both must be considered guilty of the negligence causing
the collision or both were guilty of contributory negligence, and as we see no
negligence on the part of the Road Commission, we cannot consider that there is
any moral obligation on the part of the State to pay damages for the negligent
acts of others.
As the case is without proof that the negligence alleged against the State Road
Commission was the primary cause and proximate cause of the collision, we
disallow this claim and make no award to the claimant herein.
Claim Disallowed.
78 REPORTS
STATE COURT OF CLAIMS [W.V
Opinion
i$sued April 24, 1968
DONALD L. WISECARVER
vs.
STATE ROAD COMMISSION
OF WEST VIRGINIA
(Claim No, C-15)
No appearance on behalf of claimant.
Thomas P. O’Brien. Assistant Attorney General, and
Robert R. Harpold, Jr., Esquire, for respondent.
Singleton, Judge:
Claimant on October 4, 1967, filed with this Court a claim in the amount of
$45.00 for damages sustained to claimant’s automobile as a result of a rock
being blown from respondent’s blasting operation through the windshield of said
automobile. in Berkeley County, West Virginia. This case was placed on The
damage is alleged to have occurred in or near Greensburg, the hearing docket of
this Court and called for hearing on the 21st day of March, 1968.
Upon the case being called for hearing the Assistant Attorney General and
counsel for the State Road Commission, there being no appearance on behalf of
Claimant, tendered to the Court a stipulation reciting that the respondent,
State Road Commission, had made a thorough investigation into the facts and
circumstances giving rise to said claim and as a result of said investigation
stipulated that the facts as alleged in claimant’s petition are true and that
the amount of damages alleged to have been sustained is reasonable, and waived
any right on the part of the respondent to produce any evidence concerning this
claim. This stipulation was accordingly by order of this Court filed in this
proceeding.
The facts as stipulated by counsel for the claimant and the Attorney General
were that on or about February 23, 1967, in an area known as Greensburg,
Berkeley County, West Virginia, employees and agents of the State Road
Commission of West Virginia for and on behalf of the State of West Virginia,
were
W. VA.] REPORTS
STATE COURT OF CLAIMS 79
blasting rock along the side of a State highway; and that as a result of this
blasting, a rock flew through the air breaking the windshield in the automobile
owned by Donald L. Wise- carver, the claimant herein, whose address is Route 3,
Box 71-A,
Martinsburg, West Virginia. There is no
evidence in the petition or the record before this Court of any negligence on
the part of the claimant nor of any action on his part that might lawfully
preclude his recovery. Upon consideration of the petition, the exhibits, the
stipulations and the order filing same, this Court is of the opinion that the
facts set forth in the petition do present a claim within the jurisdiction of
this Court, and further the allegations of said petition as stipulated by the
respondent do constitute a valid claim against the State of West Virginia that
in equity and good conscience should be paid and the Court is of the further
opinion, and it is hereby our judgment that the claimant, Donald L. Wisecarver,
should recover, and we do hereby award the said claimant the sum of $45.00.
Opinion issued May 16, 1968
THE CITY OF MORGANTOWN
V.
STATE ADJUTANT GENERAL
STATE
OF WEST VIRGINIA
(No. C-7)
Mike Magro, Jr., Esq. for the Claimant
Thomas P. O’Brien, Assistant Attorney General, for the State Road
Commission
Ducker, Judge:
The claimant, The City of Morgantown, West Virginia, filed a claim in the sum
of $180.00, representing unpaid rent for hangar space by Army National Guard at
claimant’s municipal airport for the period beginning July 1, 1964 and ending
December 1, 1964, the period for which the use of hangar space was kept i4 the National Guard for its use after the expiration of a previous year
to year lease. There appears to be no month to
80 REPORTS
STATE COURT OF CLAIMS [W. VA.
month tenancy involved requiring notice which might have obligated the Adjutant
General to give notice in order to be relieved of rent for the month of
December. The Adjutant General of West Virginia, under whose jurisdiction said
matter was, admitted the correctness and justice of the claim, and when the
same was presented to the Commissioner of Finance and Administration, that
department of the State answered that as there was no appropriation for the
claim it could not legally pay it although he considered the same a moral
obligation.
The claim is in error in its amount of $180.00 representing six months of rent
at $30.00 per month, because the period for which the same was used was only
for a five months period between July 1, 1964 and December 1, 1964, which at
$30.00 per month amounts to $150.00.
We are of the opinion, therefore, that the claim should be sustained to the
extent of $150.00, and an award in that amount is hereby made.
Claim allowed in the amount of $150.00.
Opinion issued May 16, 1968
DORAN FRAME, d/b/a DORAN
ELECTRICAL CONTRACTORS
V.
STATE ROAD COMMISSION
STATE OF WEST VIRGINIA
(No. C-13)
George P. Sovick, Jr., for the Claimant
Thomas P. O’Brien, Assistant Attorney General, and
Robert R. Harpoid,
Jr., Esq. for the State
Ducker, Judge:
Doran Frame, doing business as Doran Electrical Contractors in the City of
Charleston, West Virginia, was between February
W. VA.]
REPORTS STATE COURT OF CLAIMS 81
24, 1964 and December 10, 1964, employed by the State Road Commission to
perform various electrical services and furnish necessary materials for the
State Road Commission upon the latter’s property at various locations
throughout the city of Charleston. invoices or statements itemizing in detail
the electrical services rendered and the materials furnished for the State Road
Commission by the claimant at the various locations of the quarters or
properties of the Commission are filed with and attached to the petition of the
claimant, numbering some 19 different invoices in varying amounts ranging from
$42.57 to $492.50 with a total of all said invoices amounting to
$3,801.73. The claimant was advised on January 12, 1967 by the Director of the
Department of Finance and Administration that that Department had received the
invoices representing this claim which had been returned to it from the
Division of Purchases, and that the Division of Purchases had refused payment
of the claim because West Virginia Code, Section 17, Article 3, Chapter 12,
prohibits the payment of claims incurred by officers without any legislative
appropriation in the fiscal year for such payment. The claim was subsequently,
on May 8, 1967, filed with the Attorney General, and as the same was pending
before the Attorney General upon the effective date of the creation of this
Court, the claim was forwarded to this Court for consideration and decision.
There is no dispute as to either the accuracy or the justness of the claim
presented, and the State Road Commission, by its Director of the Legal
Division, has stipulated that on the basis of his investigation, the facts
presented in the petition are true, and that the amount claimed is reasonable.
The only apparent reason for the denial of the claim by the State is the lack
of compliance by the state officers with the statutory requirements for the
prior appropriation for the purchase of the material and the employment of
labor in this connection. While we do not wish to encourage or override the
statutory provisions, we are of the opinion that the fault in this connection
is so chargeable to the state officers in employing such services that the
persons employed should not be denied fair compensation for the services and
materials furnished by them, the benefit of all of which has been enjoyed by
the State.
82 REPORTS
STATE COURT OF CLAIMS Lw. VA.
We are therefore of the opinion that there is a moral obligation on the part of
the State to pay this claim, and, accordingly, we hereby award to the Doran
Frame, doing business as Doran ElectricalContractors, the sum of $3,801.73.
Claim Allowed.
Opinion issued May 16, 1968
W. E. GANO, SR.
vs.
STATE ROAD COMMISSION
(No. D-7)
Thomas P. O’Brien, Assistant Attorney General, and
Robert R. Harpold, Jr., for respondent
Jones, Judge:
This claim was received in the office of the Attorney General of West Virginia
on August 25, 1967 and was filed in this Court on September 14, 1967.
At the hearing of this claim the respondent State Road Commission tendered a
stipulation in writing reciting that having made a thorough investigation of
the facts and circumstances giving rise to the claim, it found the allegations - of the claimant’s petition to be true and the amount
claimed to be reasonable, and said stipulation was duly filed.
The facts admitted are that on or about the 12th day of June,
1967, an employee of the State Road Commission was operating
a rotary mower along State Route No. 48 in Jefferson County,
West Virginia, when a rock was negligently thrown through a
picture window of the claimant’s dwelling house, and the cost
of replacement was $16.48.
Upon consideration of the petition, the stipulation and statemerits of counsel
for the respondent, the Court is of opinion that the allegations of the
petition present a claim within the jurisdiction of the Court and the
allegations as stipulated con-
W. VA.]
REPORTS STATE COURT OF CLAIMS 83
stitute a valid claim against the State of West Virginia which in equity and
good conscience should be paid, and, accordingly, it is the judgment of the
Court that the claimant, W. E. Gano, Sr., should recover, and he is hereby
awarded the sum of $16.48
Opinion issued May 16, 1968
FEDERAL INSURANCE COMPANY and
RAYMOND T. DALTON
vs.
STATE ROAD COMMISSION
OF WEST VIRGINIA
(Claim No. D-9)
No appearance on behalf of claimant.
Thomas P. O’Brien, Assistant Attorney General and
Robert R. Harpold, Jr., Attorney at Law, for respondent. Singleton, Judge:
This claim was filed before this Court on or about September 15, 1967, in the
amount of $677.33 for damages sustained to claimant Dalton’s automobile as a
result of debris from blasting operations conducted by employees of the State
Road Commission damaging claimant’s 1965 Volkswagon on the top, sides and
windshield. The damage is alleged to have occurred in or near Welch, West Virginia,
McDowell County. This case was placed on the hearing docket of this Court for
April 8, 1968.
Upon the case being called for hearing the Assistant Attorney General and
counsel for the State Road Commission tendered to the Court a stipulation
reciting that the respondent, State Road Commission, had caused to be made a
thorough investigation into the facts and circumstances set forth in the
Petition and that as a result of said investigation the respondent was willing
to stipulate that the facts as alleged in claimant’s Petition are true and that
the amount of damages alleged to have been sustained is reasonable, and further
waived any right of
84 REPORTS
STATE COURT OF CLAIMS [W. VA.
the respondent to introduce any evidence on this claim. The stipulation
together with the order filing same was inspected and considered by the Court
and accordingly ordered filed in this proceeding.
The facts as stipulated disclosed that on or about June 26, 1967, a 1965
Volkswagon belonging to claimant, Raymond T. Dalton, was legally parked along
Route 16, commonly known as Coaiwood Road, about four miles from Welch, West
Virginia. The facts further disclosed that employees of the State Road
Commission were conducting blasting operations in this area and that rocks and
other debris from a blast set off by the State Road Commission employees fell
on and struck the Dalton vehicle substantially damaging its top, left and right
sides and windshield. No where in the record does it appear that Mr. Dalton was
warned of the blasting operations or that he failed to move his vehicle to
safeguard it, or that he did any other act that might lawfully preclude his
recovery. Upon consideration of the Petition, the exhibits, stipulation and the
order filing same, this Court is of the opinion that the facts set forth do
present a claim within its jurisdiction, and that said facts do constitute a
valid claim against the State of West Virginia that in equity and good
conscience should be paid. The Court is therefore of the opinion, and it is
hereby our judgment, that the claimant, Raymond T. Dalton and Federal Insurance
Cornpany, should recover, and we do hereby award Raymond T. Dalton and Federal
Insurance Company, jointly, the sum of
$677.33.
W. VA.J
REPORTS STATE COURT OF CLAIMS 85
Opinion issued May 16, 1968
LAIRD OFFICE EQUIPMENT COMPANY
V.
STATE ROAD COMMISSION
STATE OF WEST VIRGINIA
(No. C-b)
George P. Sovick, Jr., Esq.
K. D. Pauley, Esq. for the Claimant
Thomas P. O’Brien, Assistant Attorney General, and
Robert R. Harpold, Jr., Esq. for the State
Ducker, Judge:
The claimant, Laird Office Equipment Co., a corporation, filed its claim herein
with the Attorney General of West Virginia in the sum of $1,026.54,
representing the purchase price for office equipment sold and delivered by the
claimant to the State Road Commission, and this cause was transferred from the
office of the Attorney General to this Court for consideration and decision.
The petition shows that the claimant, Laird Office Equipment Company, while
engaged in the office supply and equipment business in the City of Charleston,
sold and delivered to the State Road Commission at the latter’s offices in
Charleston, West Virginia, in accordance with three orders from said
Commission, the following personal property, namely: (1) On February 29, 1960,
two desks and two chairs to State Road Commission District Number One Office at
1340 Wilson Street, Charleston, West Virginia, for the price of $455.50; (2) On
July 6, 1960, one office table ordered by the Legal and Right-of- way Division
of the State Road Commission at 1800 Washington Street, East, Charleston, in
the amount of $50.00; and (3) on August 15, 1960, three desks ordered by the
Legal and Right- of-way Division of the State Road Commission and delivered to 1800
Washington Street, East, Charleston, in the amount of $521.04.
86 REPORTS
STATE COURT OF CLAIMS [W. VA.
These three orders and the fulfillment
thereof were certified by the persons in charge of said office as having been
received and having been used and as being still in use by the said Road
Commission at the time of the submission by claimant of the bills for payment.
The Director of the Legal Division of the State Road Commission, stipulated
that these claims were just and reasonable. It appears from claimant’s
petition, and not contradicted, that the reason for the non-payment of this
claim is that the fiscal year in which the goods were ordered and delivered had
expired and that there was no authority for the payment thereof by the State.
We are, therefore, of the opinion that this claim is a just claim, and we
hereby award to Laird Office Equipment Company the sum of $1,026.54.
Claim Allowed.
Opinion issued May 16, 1968
W. E. MEDLEY, JR.
vs.
STATE ROAD COMMISSION
(No. C-25)
Thomas P. O’Brien, Assistant Attorney General, and
Robert R. Harpold, Jr., for respondent.
Jones, Judge:
This claim was filed before the Attorney General of West Virginia in June,
1967, and came on for hearing before this Court on March 21, 1968. The claim is
in the amount of $3,000.00 for the destruction of the claimant’s building,
situate on West Virginia Secondary Route No. 1/4, known as Angle Fork Road, in
Kanawha County. The claimant alleged that the State Road Commission negligently
created a landslide by adding rock in excessive quantities to the roadbed,
thereby producing an overburden and causing the earth to give way, slip into
and destroy the claimant’s building, and that the State Road Commission
W. VA.]
REPORTS STATE COURT OF CLAIMS 87
did nothing to avoid the impending damage when it could
have reduced or arrested the slide.
At the hearing of this claim the respondent State Road Commission tendered a
stipulation of agreement that the allegations of the claimant’s petition were
true and that the true and correct amount of damages was $2,100.00, and the
claimant, being present in person, joined in said stipulation, and the same was
duly filed.
Upon consideration of the petition, the exhibits filed, the stipulation, and
statements of counsel for the respondent, the Court is of opinion that the
allegations of the petition present a claim within the jurisdiction of the
Court and the allegations as stipulated by the parties constitute a valid claim
against the State of West Virginia which in equity and good conscience should
be paid, and accordingly, it is the judgment of the Court that the claimant, W.
E. Medley, Jr., should recover and he is hereby awarded the sum of $2,500.00.
Opinion issued May 16, 1968
MARTHA J. NICKELL and
STONEWALL CASUALTY COMPANY
vs.
STATE ROAD COMMISSION
OF WEST VIRGINIA
(Claim No. D-4)
No appearance on behalf of claimant.
Thomas P. O’Brien, Assistant Attorney General, and
Robert R. Harpolci, Jr., Attorney at Law, for respondent. Singleton, Judge:
Claimant on September 8, 1967, filed with this Court, a claim in the amount of
$104.31 for damages sustained to Claimant Nickell’s automobile as a result of
employees of the State Road Commission negligently felling a tree on said
automobile. The damage is alleged to have occurred at or near Ronceverte, in
88 REPORTS
STATE COURT OF CLAIMS [W. VA.
Greenbrier County, West Virginia. This case was placed upon the hearing docket
of this Court for April 8, 1968.
Upon the case being called for hearing, the Assistant Attorney General and
counsel for the State Road Commission, there being no appearance on behalf of
claimant, tendered to the Court a stipulation reciting that the respondent,
State Road Commission, had made a thorough investigation into the facts and
circumstances giving rise to said claim, and that as a result of said
investigation it appears that the facts as alleged in claimant’s Petition are
true and that the amount claimed as compensation for the damages sustained is
reasonable, said stipulation further waiving any right on the part of the
respondent to introduce evidence concerning this claim. The stipulation was
inspected and approved by the Court and ordered filed in this proceeding. The
facts as stipulated on behalf of the claimant and by the Attorney General
disclose that on or about September 15, 1966, Martha J. Nickell was operating
her vehicle with her Mother, Mrs. M. 0. Morgan, as a passenger on a West
Virginia State highway South of Ronceverte, West Virginia, in Greenbrier
County, where employees of the State Road Commission were cutting some trees
from the bank above the State highway. The flagman for the State Road
Commission signaled Mrs. Nickell to proceed past the cutting activity of the
State Road Commission and as she was operating her vehicle passing this area
one of the employees of the State Road Commission severed a large limb from a
tree and it hit the Claimant Nickell’s vehicle damaging the lefthand or
driver’s side thereof. The Petition does not disclose any action on the part of
the Claimant Nickell that might lawfully preclude her recovery or constitute
contributory negligence. Upon consideration of the Petition, the exhibits, the
stipulation and the order filing same, this Court is of the Opinion that this
claim is within the jurisdiction of this Court and that the facts as stipulated
do constitute a valid claim against the State of West Virginia that in equity
and good conscience should be paid. It is therefore the opinion of this Court,
and it is hereby our judgment, that the Claimant, Martha J. Nickell, and her
Insuror, Stonewall Casualty Company, should recover and we do hereby jointly
award to them the sum of $104.31.
W. VA.]
REPORTS STATE COURT OF CLAIMS 89
Opinion issued May 16, 1968
EVERETT L. PARRISH
V.
STATE AERONAUTICS COMMISSION
STATE OF WEST VIRGINIA
(No. C-18)
Claimant appearing in person
Thomas P. O’Brien, Assistant Attorney General, for the State. Ducker,
Judge:
The claimant, Everett L. Parrish, alleges in his petition that he was Executive
Director of the West Virginia State Aeronautics Commission from March 16, 1962
until February 28, 1967, and that at the time he resigned that position he had
35½ days of accrued annual leave, which included three holidays, and that on
the basis of his salary payment he was entitled to receive for said leave time
the sum of $1,650.00. The claimant applied to the Aeronautics Commission for
payment of this claim and the claim was submitted by the Aeronautics Commission
to the Attorney General for his opinion as to the legality of the claim. The
Attorney General advised the Commission that it could not legally pay the claim
because the claimant was an appointive officer and not such a state employee as
was entitled to such leave pay under the provisions of the Rules and Regulations
of the Board of Public Works of West Virginia. So now this claim is now filed
with this Court for a determination of the question.
There is no denial of the facts involved herein, as it appears from the
testimony of the witnesses for the claimant that a record was made of the
various days for which there has been an accrual of annual leave time and that
the claimant has not been paid anything on this account.
Claimant in his testimony taken before this Court admits that the Aeronautics
Commission appointed him Executive Director, that the Commission is composed of
five members, and he was not an appointee of the Governor or otherwise what he
describes as a political appointee, but he says that he was a regular employee
and that accurate records, were kept of
his time, and that it had been the
custom for previous Executive
90 REPORTS
STATE COURT OF CLAIMS [W. VA.
Directors of the Aeronautics Commission to be paid annual leave time in the
same manner as he now claims he is entitled to be paid.
The rules and regulations governing West Virginia personnel, as issued by the
Board of Public Works in the paragraph relating to annual leave, provide as
follows: “Annual leave regulations shall not apply to elected or appointed
state officials.”
Any question of the number of leave time days involved is rendered immaterial,
if this case is within the exception cited in the rules to the effect that no
elective or appointive officers are entitled to payment for such annual leave
time. The facts are conclusive in our opinion that the claimant was an
appointive officer and not an ordinary state employee as contemplated in the
rules. There is no specification in the rules that an appointive officer is
only one appointed by the Governor. Various Commissions of the State have the
power to appoint their officers, such as was given to the State Aeronautics
Commission to appoint its Executive Director. The reason for such exception to
the rules relating to payment for annual leave is no doubt based upon the
primary fact that one in an executive position, such as the Executive Director
in this case, is not paid on any hourly or daily basis, although the Commission
may have had its own regulation to the effect that the Director should serve 5½
days per week. The very nature of any such office, in every reasonable
contemplation, may involve many hours one week and much less another week, or
so on from month to month or even from year to year. The fact that previous
holders of a position had been granted payment for allowed annual leave time
does not justify this Court in following such a precedent when to do so would
again violate the law.
We are of the opinion that the advice given by the Attorney General to the
Aeronautics Commission that it was improper for it to pay for annual leave
because it would be contrary to the letter and intent of the rules and
regulations promulgated by the Board of Public Works, is correct.
We are therefore of the opinion that claimant is not entitled to compensation
from the State on his claim and the same is hereby disallowed.
Claim Disallowed.
W. VA.]
REPORTS STATE COURT OF CLAIMS — 91
Opinion issued May 16, 1968
RELIANCE ELECTRIC AND
ENGINEERING COMPANY
vs.
DEPARTMENT OF PUBLIC INSTITUTIONS
OF WEST VIRGINIA
(Claim No. D-31)
No appearance on behalf of claimant
Thomas P. O’Brien, Assistant Attorney General for respondent.
Singleton, Judge:
Claimant on November 6, 1967, filed with the Court of Claims its Petition for
the sum of $53.34 as compensation and payment to it for an electric motor
supplied and installed at the request of the West Virginia Department of Public
Institutions in Pine-. crest Sanitarium.
The case was set down for hearing before this Court for April 8, 1968, at which
time there was no appearance on behalf of claimant, but counsel for the State
of West Virginia and the West Virginia Department of Public Institutions,
Assistant Attorney General Thomas P. O’Brien tendered to the Court a
stipulation admitting the facts as alleged in the Petition and as set forth in
the Answer. The stipulation was reviewed by the Court and, after consideration
thereof, was accordingly ordered filed in this proceeding. The facts as
admitted by stipulation disclosed that the claimant had supplied an electric
motor to Pinecrest Sanitarium of a value of $53.34; that the motor was ordered
by Respondent from claimant on or about February 15, 1967; that the motor was
shipped on July 25, 1967, and thereafter claimant submitted an invoice for the
payment of same to the respondent. The stipulation further discloses that
inasmuch as the invoice was submitted after the close of the fiscal year
1966-67 (June 30, 1967), the appropriation of funds for payment of this invoice
had expired.
It does not appear from the Petition or the record before this Court that
claimant was guilty of any delay or negligence on
92 REPORTS
STATE COURT OF CLAIMS [W. VA.
its part that might lawfully preclude its recovery. Upon consideration therefor
of the Petition, the exhibits, the stipulation and the order filing and approving
same, this Court is of the opinion that the facts set forth and stipulated do
present a claim within the jurisdiction of this Court and that said facts do
constitute a valid claim against the State of West Virginia that in equity and
good conscience should be paid. The Court is further of the opinion, and it is
hereby our judgment, that the claimant, Reliance Electric and Engineering
Company, a corporation, should recover and we do hereby award the said claimant
the sum of $53.34.
Opi??ion issued May 16, 1968
MRS. RUDOLPH H. WEBB
vs.
STATE TAX COMMISSIONER
(No. C-22)
Thomas P. O’Brien, Assistant Attorney General, and Robert R. Harpold, Jr., for respondent.
Jones, Judge:
This claim was filed before the Attorney General on May 5,
1967.
At the hearing held by this Court on March 21, 1968, the claimant and her
husband, Rudolph H. Webb, appeared in person, and were not represented by
counsel.
The claimant in this case claims damages to the residence owned by the claimant
and her husband situate at 2605 Roosevelt Avenue, St. Albans, West Virginia,
alleged to have been caused by shock and vibrations originated by heavy trucks
traveling over United States Route No. 60, which parallels Roosevelt Avenue
approximately 180 feet north thereof. The claimant alleges that the vibrations
emanated from a defective section of the concrete highway which had been
patched on several occasions with asphalt, which in turn deteriorated and
W. VA.]
REPORTS STATE COURT OF CLAIMS 93
was rough and bumpy. The claimant’s residence is approximately seventeen years
old and is one of several houses built at or near the same time as a Naval
Ordinance project in a subdivision known as Ordinance Park. The claimant
testified that the vibrations were so severe that plates were knocked off of
the walls, nails were loosened and the walls of the house were cracked. The
claimant testified that she had already spent $305.42 for repairs and that the
lowest of two estimates for the entire repair job was $900.00. Only the
claimant and her husband testified in support of the petition; and there was no
valid evidence that any of the several houses located nearby were similarly
damaged.
The respondent State Road Commission produced three employees of the Safety And
Claims Division of the State Road Commission, all of whom visited the premises
and were present when large trucks passed thereby. None of them felt any
vibration although one of the State witnesses testified that he noted “some
rattle to the windows of the kitchen”.
John W. Webb, Geologist for the State Road Commission, testified that the house
was built several feet above bedrock and that the damages alleged to have been
sustained might have been caused by subsidence attributable to an unstable
foundation and the seasonal fluctuation of the water table.
During the investigation of this claim, the respondent proposed that a
seismograph reading of the alleged vibrations be taken on the premises. This
was first agreed to by the claimant but before the seismograph could be
installed the claimant changed her mind and informed the respondent that the
reading could not be taken.
It is common knowledge that heavy trucks cause some vibrations as they pass
along our highways; but upon consideration of all the evidence adduced in this
case, the Court finds that the deterioration of the claimant’s residence has
not been sufficiently connected with any negligent act or failure to act on the
part of the respondent, and that the claimant has failed to prove her claim by
a preponderance of the evidence. Therefore, it is our judgment that this claim
should be and it is hereby disallowed.
94 REPORTS
STATE COURT OF CLAIMS [W.VA.
Opinion issued May 24, 1968
CENTRAL ASPHALT PAVING CO. and
CONCRETE CONSTRUCTION COMPANY
V.
STATE ROAD COMMISSION
(No. C-29)
Frank L. Taylor, Jr., Esq. Kay,
Casto & Chaney for
the claimant.
Thomas P. O’Brien, Assistant Attorney General, Robert R. Harpold, Jr., Esq.,
Theodore L. Shreve, Esq. for the State.
Ducker, Judge:
The claimants, Central Asphalt Paving Co., a West Virginia corporation, and
Concrete Construction Company, a West Virginia corporation, both with offices
in Charleston, West Virginia, were the successful bidders on State Road
Commission Project No. U-317 (8), C-i, Kanawha County, West Virginia, sometimes
known as the Southside Expressway Project, and according to a final estimate in
March, 1966 they were fully paid except for the amount claimed in this
proceeding.
The contention of the claimants here is that they were paid only $0.10 per
cubic yard, the bid price, instead of $1.50 per cubic yard for “special rock
fill” shown on the “Summary of Earthwork” estimated to be 20,425 cubic yards,
the difference claimed being $1.40 per cubic yard for the actual amounts of
yardage, namely, 16,987.9 yards, totaling $23,783.06. The claimants contend
that they were misled or deceived by the State Road Commission by the latter’s
specifications upon which claimants made their bid on the project, the
specifications being the information relating to a core drill report on Cross
Secton Sheet No. 121 and the said “Summary of Earthwork” contained on Sheet No.
9 of the plans and specifications for the project, and that they did not find
and/or were not permitted to use the rock which was or could have been
excavated within the proj ect land, but were required to obtain the rock listed
as special rock fill from an adjoining quarry about two miles away owned by the
Nello L. Teer Company, and the
W. VA.]
REPORTS STATE COURT OF CLAIMS 95
cost in doing so involved additional
expense of the $1.40 per cubic yard now claimed by these contractors. Claimants
also say that the rock obtained from the project land was as good for the
purpose as that they obtained from the Teer Company’s quarry.
The respondent denies completely the claim of the claimants, saying first that
there was no deception in the plans and specifications, and, secondly, that the
bids were made and the contract was let in accordance with the “State Road
Commission of West Virginia Specifications—Roads and Bridges adopted 1960”,
reference to which provisions was specifically set forth on the plans and
specifications for this project. The provisions of those specifications are set
forth in Sections 2125.2 and 2.1254 as follows:
“If satisfactory rock is not found in the roadway excavation the Contractor
shall secure suitable material from an approved source selected for this
purpose.”
“Special rock fill may be reduced or eliminated depending upon the amount of
suitable rock obtained from the roadway excavation.”
There is evidence to the effect that there was some discussion of the situation
at a meeting with the Road Commission officials and that the agent of the
claimants expressed his opinion, without reply by the Commission, that there
would be ample rock on the land in project to complete the special rock fill
requirement of the specifications, but the minutes of the meeting of the Road
Commission of January 15, 1962 contain no such reference or information, and
there is no satisfactory proof of any agreement or understanding as to this. We
consider what was said as too vague to be of real probative value.
Upon the question as to whether claimants have been deceived or misled by the
plans and specifications, we fail to see how the claimants could have been
misled by the log of the core hole, as that log is evidently correct and it is
not alleged, nor does it show, that it necessarily represents the strata of the
whole area. It could only represent the strata immediately around which the
core was taken, and the claimnts had the same information as the Road
Commission from which to estimate the amount of rock that could be obtained
from the project area. Furthermore, the specifications only estimated the
96 REPORTS
STATE COURT OF CLAIMS [W. VA.
number of cubic yards necessary for the fill, not how much rock could be
recovered from the area. The contractors had to make their own independent
estimate on that, and, of course, it is unfortunate that they based their bid
on their own wrong premise. Nor are we unmindful of their claim that they were
prohibited by the Road Commission from using the material they took or could
have taken from the project area, but the evidence offered by claimants in that
regard is not adequately convincing to justify this Court in finding the State
Road Commission wrong in its decision of that question.
We are of the opinion that the claimants were fully aware, or should have been
aware, of the specifications and their meaning. The words of the manual are in
no sense ambiguous, and it was the clear duty of the claimants to secure
suitable rock material for the fill whether the amount to be recovered from the
project area was sufficient or not, as there was no provision, other than the
log of the core, to the effect that rock material was available from the
project area. The log of the core was only informative so far as it went. The
contractors made no condition in their bid that demands the State Road
Commission accept their interpretation of the plans or otherwise reduce the
conditions or terms of the contract. When claimants discovered that they, or
the Road Commission, were in error was the time for modification of the
contract if desirable or necessary, and this court does not think it should do
so now.
In view of our findings and reasons as hereinabove outlined, we are of the
opinion to, and do disallow and make no award to the claimants herein.
Claim disallowed.
W. VA.]
REPORTS STATE COURT OF CLAIMS 97
Opinion issued May 24, 1968
CLARENCE C. ELMORE
vs.
ALCOHOLIC BEVERAGE CONTROL COMMISSIONER
BOARD OF PUBLIC WORKS
OFFICE OF THE GOVERNOR,
AND STATE OF WEST VIRGINIA
(No. D-29)
Walter W. Burton, Burton and Burkett, for claimant.
Thomas P. O’Brien, Assistant Attorney General, for respondents.
Jones, Judge:
This claim was filed in this Court on October 27, 1967 and came on for hearing
on April 8, 1968, at which time the respondents tendered and asked leave to
file a stipulation in writing that all of the facts alleged in the claimant’s
petition are true. Said stipulation was duly filed and thereupon the claim was
submitted for decision upon the record.
It appears from the claimant’s petition that on or about May 5, 1966, the
claimant was invited by the liquor commissioners of Norway and Finland to
participate in a Joint Liquor Administrators Study Conference and inspection of
the Liquor Control operations in three Scandinavian countries, from June 12-20,
1966; that this conference was coordinated and planned by the National Alcoholic
Beverage Control Association, Inc., of which the State of West Virginia is a
member; that by letter dated June 6, 1966, the Honorable Hulett C. Smith,
Governor of the State of West Virginia, and Chairman of the Board of Public
Works and the Out-of-State Travel Board, approved said trip and requested a
full report upon the claimant’s return; that the claimant departed New York on
June 8, 1966, and visited Italy, Sweden, Norway, Denmark, France and England
before returning to New York on June 28, 1966 in pursuance of a schedule
furnished Governor Smith prior to receipt of the Governor’s letter of approval;
that the travel was undertaken for and on behalf of the State of West Virginia
and in connec
98 REPORTS
STATE COURT OF CLAIMS [W. VA.
tion with the claimant2s official
duties; that on August 17, 1966, the claimant submitted a travel voucher
seeking reimbursement for expenses in the amount of $803.79; that on August 18,
1966, the Honorable Denzil L. Gainer, Auditor of the State of West Virginia,
refused to issue the State’s warrant in payment of the voucher upon grounds
that the claimant had not obtained the prior approval of the Board of Public
Works as required by its rules and regulations, and that the meeting was not a
meeting of an association or organization not requiring such prior approval;
and the claimant further alleges that he paid the sum of $803.79 out of his
personal funds for travel undertaken for the State of West Virginia and that he
acted in good faith in relying upon Governor Smith’s approval and permission.
It further appears from the exhibits filed and the Court’s independent
investigation that the State Administrators of West Virginia, Pennsylvania,
Michigan and Washington and the National Administrators of Finland, Norway and
Sweden participated in the conference; that no claim was made for expenses to
New York; that the major portion of the claim is for travel, with the remainder
being for hotel accommodations; that all other expenses were paid for by the
host countries; and that upon his return the claimant made a detailed and
extensive report to the Governor, which was released for public scrutiny.
Pursuant to Chapter 137, Acts of the Legislature 1965, relating to travel
expenses, the Board of Public Works promulgated rules and regulations
concerning out-of-state travel by state officials and employees, Section VI of
which provides as follows:
“Costs for out-of-state travel will be reimbursed only for travel deemed
necessary for the proper conduct of the State’s business and will require the
certification of the department head before reimbursement is made. Prior
approval of the Board of Public Works will be required for travel and
attendance to any meeting outside the State, except to those meetings of
associations or organizations for which membership for the State of West
Virginia has been approved by the Board of Public Works.”
The claimant did not obtain the prior approval of the Board of Public Works,
and in the opinion of the Auditor, the travel
W.VA.J REPORTS
STATE COURT OF CLAIMS 99
did not come within the exception to the rules and regulations which applies to
meetings of associations for which membership of the State of West Virginia has
been approved by the Board of Public Works. West Virginia is a duly approved
member of the National Alcoholic Beverage Control Association, Inc., and the
question arises as to whether the “study conference” was a meeting of the
association within the meaning of the rules and regulations. This was not a
meeting of all members of the association, but the study was intended to be for
the benefit of all members, including West Virginia, and perhaps was of greater
benefit to those states whose representatives actively participated. The fact
that the Study Conference covered several countries in Europe did not make it
any less a meeting.
We are of the opinion that this was not such a meeting as is contemplated by
the exception hereinabove noted. However, there is room for interpretation and
enough uncertainty to give support to the claimant’s assertion that he acted in
good faith. There are other substantial extenuating circumstances. The chief
executive officer of the State, who was also Chairman of the Board of Public
Works and Chairman of the Out- of-State Travel Board, approved participation in
the Study Conference as “worthwhile” and “beneficial”, and those in authority
in the states of Pennsylvania, Michigan and Washington, apparently concurred.
The claimant’s letter to the Governor requesting approval of the trip
specifically stated that “I will be traveling at State expense.”
The respondents have stipulated that the travel was undertaken for and on
behalf of the State and in conjunction with the claimant’s official duties, and
that the claimant acted in good faith. Therefore, it follows that the State has
received the benefits arising from the expenditures in question. While we
disapprove the procedure followed by the claimant, and there is the obvious
temptation to make an example of the claimant for other officials and employees
for the sake of strict compliance with the travel rules and regulations in the
future, we are impressed in this case by the admitted good faith of the
claimant, the opportunity for honest error in the interpretation of the rules
and regulations, the cogent fact that the conduct of the claimant was approved
in advance by the Governor
100 REPORTS
STATE COURT OF CLAIMS [W. VA.
of West Virginia, and the undenied assertion that the State of West Virginia
derived benefits from the expenditures for which reimbursement is sought.
Chapter 14, Article 2, Section 13 of the Code of West Virginia extends the
jurisdiction of this Court to claims “which the State as a sovereign
commonwealth should in equity and good conscience discharge and pay.” After
consideration of the petition, the exhibits, the stipulation of the parties
admitting claimant’s allegations and the Court’s independent findings, it is
our opinion that the claimant has proved a valid claim against the office of
the Alcoholic Beverage Control Commissioner, which in equity and good
conscience should be paid; and it is the Court’s judgment that the claimant,
Clarence C. Elmore, should recover, and he is hereby awarded the sum of
$803.79.
Opinion issued May 24, 1968
EUREKA PIPE LINE COMPANY
v.
DEPARTMENT OF NATURAL RESOURCES
STATE OF WEST VIRGINIA
(No. D-20)
John R. Morris, Esq. and Charles
R. McElwee, Esq. for the Claimant.
Thomas P. O’Brien, Assistant Attorney General, for the State. Ducker,
Judge:
The claimant, Eureka Pine Line Company, a West Virginia corporation with
offices in Parkersburg, West Virginia, owned and operated with easement rights
two six-inch high pressure oil pipe lines which crossed Conaway Run, a branch
of Middle Island Creek in Centerville District, Tyler County, West Virginia.
The Department of Resources of the State of West Virginia proposed to construct
a lake on Conaway Run which would inundate the right-of-way and pipe lines of
claimant, and the representatives of the Department of Resources contacted
claimant and submitted two alternative plans with
W. VA.]
REPORTS STATE COURT OF CLAIMS 101
respect to the right-of-way and the pipe lines, one to be the taking of the
right-of-way and the relocation of claimant’s pipe lines around the proposed
lake site at an estimated cost of $20,000.00, and the other alternate plan to
be the replacement and up-grading of the existing pipe lines at an estimated
cost of $5,693.00; that amount to be the actual cost of labor and material, but
not limited to the said estimate figure. The State Agency accepted the latter
offer and the parties entered into a written agreement dated April 1, 1961,
which was processed in accordance with all legal requirements as to approval
thereof by the Department of Finance and Administration and the Attorney General,
and all work was done satisfactorily and in accordance with the agreement, but
the total costs thereof amounted to a total of $6,963.38 according to a
statement rendered by the claimant to the respondent showing in detail the
exact amounts expended by claimant for labor, materials, equipment and all
other costs, after giving credit to the State for the salvage value of the pipe
removed. In addition to the testimony of the witnesses for claimant, a
stipulation between the parties was filed and admitted in the evidence, and the
only item in controversy is the amount of the claim. At the hearing the
claimant moved that its claim be reduced to $6,741.99 because it had been
discovered that the pipe recovered from the lake had been sold and the proper
credit to the State was the sum of $221.39.
The sole question involved is whether or not the claimant is entitled to
recover its total claim of $6,741.99, or is it limited to the amount designated
as the estimated cost of $5,693.00 specified in the agreement of April 1, 1964
between the State and the claimant. The exact wording of the agreement in this
respect is as follows:
“Resources agrees to reimburse Eureka for the actual cost of said pipe lines.
Said cost is estimated to be as follows (the separate items total $5,693.00).
It is understood by and between the parties that the above cost estimate is an
estimate only and not a declaration of maximum cost and it assumes the
prevalence of favorable weather and working conditions.”
The evidnce clearly shows that it was contemplated that claimant would have
time to remove the old pipe and install the new pipe before the area was
submerged with lake water,
1U2 — REPORTS STATE COURT OF CLAIMS [W. VA.
but
such was not the case and claimant
had to
do the work after the dam was
completed and the water lowered which necessitated the work being done in muddy and slimy conditions.
The express wording of the contract that it was only an estimate of the cost
and not a maximum figure is entirely clear and not ambiguous, and the reason
for such wording is further sustained by the evidence as to the working
conditions.
Wherefore, it is the opinion of this Court that the claimant has proved its
claim by uncontradicted evidence in accordance with the terms of the agreement,
and we hereby award the claimant, Eureka Pipe Line Co. Inc., the sum of
$6,741.99.
Claim awarded.
Opinion issued May 24, 1968
STATE
FARM MUTUAL AUTOMOBILE
INSURANCE
COMPANY
v.
STATE ROAD COMMISSION
STATE
OF WEST VIRGINIA
(No. D-5)
F. L. Copeiand for the claimant.
Thomas P. O’Brien, Assistant Attorney General, and Robert
R. Harpold, Jr., for
the State.
Ducker,
Judge:
The claimant, State Farm Mutual Automobile Insurance Company, an Ohio
corporation, as assignee in writing of Walter Tyler of Elm Grove, West
Virginia, alleges that on February 17, 1967, Walter Tyler was driving his 1962
Corvair automobile along Peters Run Road in the City of Wheeling, West
Virginia, following a State Road Commission truck loaded high with slag, and
that when the truck jerked”, slag was thrown from the truck onto Tyler’s
automobile, causing damage in the sum of $148.01 to the fenders, hood and
windshield of the Tyler car.
W. VA.]
REPORTS STATE COURT OF CLAIMS 103
The Attorney General and Counsel for the Road Commission, after filing their
answer to claimant’s petition, filed their stipulation to the effect that the
facts aHeged by claimant were true and that the amount of aamages was correct.
We are, therefore, of the opinion that the employees of the Road Commission
were negugent in so loading the truck, that the claim is just and should be
paid, arid we hereby award claimant the sum of $148.01,
Claim awarded.
Opinion issued May 24, 1968
PATRICK C. WILLIAMS, JR.
V.
DEPARTMENT OF EDUCATION
STATE OF WEST VIRGINIA
(No. D-26)
Claimant in person
Thomas P. O’Brien, Assistant Attorney General, for the State Ducker,
Judge:
The claimant, Patrick C. Williams, Jr., M. D., states that at the request of
the Division of Vocational Rehabilitation of the Department of Education of the
State of West Virginia, he gave a medical consultation at Charleston IVlemorial
Hospital on October 10, 1965 and made hospital visits at Charleston General
Hospital on November 8, 9, 10 and 11, 1965 to one Norma Board, a client of the
Rehabilitation Center, for which services he claims the sum of $24.00.
The Director of the Vocational Rehabilitation Division and the Attorney General
have answered the petition stating that the claim was correct, that it was not
paid by reason of error and the amount is just and due the claimant,
Wherefore, this Court is of the opinion that the claim is just and should be
paid, and, accordingly, we award the claimant the sum of $24.00.
Claim awarded.
104 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion issued June 5, 1968
CHARLESTON CONCRETE FLOOR COMPANY
vs.
STATE ROAD COMMISSION
(Claim No. D-6)
Frank L. Taylor, Jr., Kay, Casto & Chaney, for
claimant
Thomas P. O’Brien, Robert R. Harpold,
Jr. and Theodore L. Shreve, for respondent
Jones, Judge:
In 1961 the claimant, Charleston Concrete Floor Company, was awarded a contract
by the respondent State Road Commission to construct bridge number 2113 on
Interstate Route
64. The claimant moved certain equipment onto the project site, some of which
was owned by the claimant and some of which had been rented by the claimant for
use on this project. Thereafter a delay and shutdown of work was occasioned by
the necessity for the redesign of one of the bridge piers and the claimant’s
equipment was immobilized for the period from July 19, 1963 through August 30,
1963, The claimant alleged damages in the amount of $24,680.35 for loss of use
of its equipment during the time the project was shut down. Upon the hearing of
this claim it was stipulated by counsel for the parties that the foregoing
statements are true except as to the amount of damages and that the claimant
was in no way responsible for the delay. It was further stipulated that certain
enumerated items of equipment were idle for specified numbers of hours at
agreed rates per hour, and that the total compensation which the claimant is
entitled to receive is the sum of
$9,713.78.
Upon consideration of the petition and the stipulation and statements of
counsel, the Court is of opinion that the petition and stipulation present a
valid claim within the jurisdiction of the Court and against the State of West
Virginia which in equity and good conscience should be paid, and accordingly,
it is the judgment of the Court that the claimant, Charleston Concrete Floor Company,
should recover and it is hereby awarded the sum of $9,713.78.
W. VA.]
REPORTS STATE COURT OF CLAIMS 105
Opinion issued June 5, 1968
WILLIAM CURRY and
MARY E. CURRY
V.
STATE ROAD COMMISSION
OF WEST VIRGINIA
(Claim No. C-2)
No appearance on behalf of claimants.
Thomas P. O’Brien, Assistant Attorney General, and
Robert R. Harpold,
Jr., Esquire, for respondent.
Singleton, Judge:
Claimant on December 9, 1965, filed before the Attorney General of the State of
West Virginia, a claim in the amount of $2,275.76 for damages sustained to
claimants’ automobile and dwelling house as a result of these being struck by a
State Road Commission truck. The damage was alleged to have occurred on their
premises on Route 21 in Sandyville, Jackson County, West Virginia. The claim
was subsequently transferred to this Court by the Attorney General after July
1, 1967, and set down on the hearing docket on February 23, 1968.
Upon the case being called for hearing the Assistant Attorney General and
counsel for the State Road Commission, there being no appearance on behalf of
claimants, tendered to the Court a stipulation reciting that the respondent,
State Road Commission, had made a thorough investigation into the facts and
circumstances giving rise to said claim and as a result of said investigation
stipulated that the facts as alleged in claimants’ petition are true and that
the amount of damages alleged to have been sustained is reasonable, and waived
any right on the part of the respondent to produce any evidence concerning this
claim. This stipulation was accordingly by order of this Court filed in this
proceeding.
The facts as stipulated by counsel for the claimant and the Attorney General
were that on July 31, 1965, a State Road Commissior dump truck loaded with
gravel and operated by
106 REPORTS STATE COURT OF CLAIMS [W. VA.
Arthur B. Kirby, a State Road Commission
employee, was proceeding on Route 21 in Jackson County in a southerly direction
when the brakes failed on said truck causing it to leave
the roadway and strike the house of the petitioners and also their automobile,
which was setting on their driveway. There is no evidence in the record before
this Court of any negligence on the part of the claimants nor any inaction on
their part that might lawfully preclude any recovery, and it appears that the
sole cause of the damage was defective condition of the brakes on the State
Road Commission vehicle.
Upon consideration of the petitioner, the exhibits, the stipulation and the
order filing same, this Court is of the opinion that the facts set forth in the
petition do present a claim within the Iurisdction of this Court, and further
the allegations of said petition as stipulated by the respondent do constitute
a valid claim against the State of West Virginia that in equity and good
conscience should be paid and the Court is of the further opinion and it is
hereby our judgment that the claimants, William Curry and Mary E. Curry, should
recover, and we do hereby award the said claimants the sum of $2,106.71. It
should be pointed out that the aforementioned sum awarded is not the sum
alleged in the petition but is the actual expense incurred by the petitioners
for the repairs to their dwelling and automobile as evidenced by exhibits and
statements subsequently filed in this matter.
Opinion issued June 5, 1968
GARY
R. HOTT
vs.
DEPARTMENT OF NATURAL RESOURCES
(No. D-27)
Claimana in person
Larry Skeen, Assistant Attorney General, and Thomas P. O’Brien, Assistant
Attorney General. for respondent.
Jones,
Judge:
i October 26, 1967, the c1aimat,
Gary R. Hott. filed his claim
far $233.40 for damages to his 1962 model Volkswagen
W. VA.] REPORTS STATE COURT OF CLAIMS 107
automobile, caused by a fire of undetermined origin which destroyed the “Old
Mill” building at the Spring Run State Trout Hatchery at Dorcas. West Virginia,
at about 1:00 o’clock in the morning on Saturday. May 20, 1967. The vehicle had
been parked adjacent to the mill building by the claimant while he was
performing routine hatchery duties as an employee of the West Virginia
Department of Natural Resources, Division of Game and Fish. A State truck,
parked nearer the building was practically destroyed by the fire, and there is
satisfactory evidence that the claimant sustained damages in the amount
claimed.
The claimant contends that the respondent was negligent in directing the
claimant to place his vehicle in a position of danger and that the respondent
was negligent in not removing the vehicle from the place of danger. The
supervisor and assistant supervisor of the Hatchery lived nearby but there is
no showing as to exactly when and under what circumstances they discovered the
fire or what if any opportunity they had to remove the claimant’s vehicle from
the damaging heat. The frame building was old and dry and it burned quickly.
The State is not an insurer of its employee’s automobile properly parked upon
State property, and it is not liable for loss caused by accidental fire. The
State could only be liable if it failed to exercise ordinary care for the
safety of the property left in its keeping and there is no showing of
negligence in that regard. No negligence on the part of the respondent has been
proved by the claimant and therefore it is our judgment that this claim be and
the same is hereby disallowed.
108 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinio-n issued June 5, 1968
GOLDA DENNING ROBERTS
vs.
STATE ROAD COMMISSION
(Claim No. D-8)
Sam
R. Harshbarger, E. G. Marshall, Marshall,
Harshbarger & St. Clair, for
claimant
Thomas P. O’Brien, Assistant Attorney General, Robert R. Harpold, Jr. and John W.
Swisher, for respondents
Jones, Judge:
This claim was received in the office of the Attorney General of West Virginia
on July 27, 1967 and was filed in this Court on September 15, 1967. The
claimant, Golda Denning Roberts, contends that the respondent State Road
Commission should pay her one year’s interest in the amount of $1260.80 upon a
judgment and award in a condemnation suit in the Circuit Court of Cabell
County, West Virginia, in the amount of $21.013.34 which was paid into court on
May 10, 1965 but according to the claimant such payment was intentionally or
negligently concealed by the respondent through its counsel and not made known
to her or her counsel until approximately one year later. This suit was
instituted about five years before it was tried in December 1964 and resulted
in a jury verdict of $16,000.00 plus interest for approximately five years. The
final judgment order was presented to counsel for the claimant on March 22,
1965, was approved by him and was entered by the Circuit Court on March 24,
1965. Counsel for the respondent paid the amount of the judgment and interest
to the Clerk of the Circuit Court on May 10, 1965 and he testified that within
a day or two thereafter he informed a member of the law firm representing the
claimant that payment had been made and that the same information was repeated
on several occasions. One of counsel for the claimant testified that he was
considering an appeal as late as August 1965; and that no mention of the
payment into Court was ever made to him although he and counsel for the
respondent discussed the case many times.
W. VA.]
REPORTS STATE COURT OF CLAIMS 109
Another partner in the firm representing the claimant would not deny that he
had received a telephone call from counsel for the respondent notifying him of
the payment, but testified that he could remember no such conversation.
Prior to the passage of House Bill No. 699 by the Legislature of West Virginia,
Regular Session, 1965, which was passed March 13, 1965 and became effective
ninety days from passage, there was no statute requiring a condemnor to give
notice to parties of record or their counsel of the payment of an award or
judgment into court. Therefore, at the time of the payment in question there
was no legal requirement that any notice be given. It appears from the evidence
that in Cabell County it was customary for the State Road Commission to give informal
notice to the parties of record or their counsel; that counsel for both sides
had handled many condemnation cases; and that it was generally understood among
counsel participating in condemnation cases that the approximate time for
payment into Court after entry of the judgment order was five to six weeks.
While counsel for the claimant approved the final order there is nothing to
show that he ever checked to see if it had been entered, and he never checked
the Circuit Clerk’s office, even by telephone, to see if payment had been made.
We have here an unhappy failure of communication between the lawyers in this
case but in our view this is not a determining factor. Reasonable diligence in
behalf of the claimant readily would have revealed the fact that the money had
been deposited in the Clerk’s office; and upon consideration of all of the
evidence we are of the opinion that claimant’s counsel was not intentionally or
negligently misled nor was the payment intentionally or negligently concealed
from him. It is further our opinion that this is not a case wherein equity and
good conscience require compensation to the claimant by the State of West
Virginia and accordingly this claim is disallowed.
110 REPORTS
STATE COU1T OF CLAIMS [W. VA.
Opinion issued July 2,
1968
HENRY
A. BEASLEY
vs.
STATE ROAD COMMISSION
OF WEST VIRGINIA
(Claim No. C-21)
Henry A. Beasley, claimant, in person.
Thomas P. O’Brien, Assistant
Attorney General, and Robert R.
Harpoid, Jr., Attorney
at Law, State Road Commission, for respondent.
Singleton, Judge:
This
claim was filed before the Attorney General of West Virginia on May 3, 1967,
subsequently transferred to this Court after July 1, 1967, and came on for
hearing on March 21, 1968. The claimant appeared in person, without counsel,
and offered evidence that in March, 1967, a portion of claimant’s bottom land
was flooded due to a smashed-in and stopped-up culvert installed and
negligently maintained by the State Road Commission and that, as a result, his
top soil was washed away. The claimant further testified that he used the
bottom land in question as pasture for horses. Claimant’s land is located in
Kanawha County, and the drain or culvert was installed about 1948. It was replaced
after the flooding of Mr. Beasley’s land in March of 1967 by two drains in a
direct effort on the part of the State Road Commission to try to prevent any
further flooding of claimant’s land as a result of normal rainfall. The
evidence of the respondent’s witnesses further disclosed that the drain that
was removed and which caused the flooding of Mr. Beasley’s land did have debris
in it, and the picture, claimant’s exhibit No. 4, of the drain did disclose it
to be in a smashed condition. While the record further discloses that even the
new double drain installed by respondent could not possibly handle a rainfall
of the magnitude of 1961, this Court is of the opinion that the evidence does
sustain the contention of the claimant that the drain in question in March of
1967 had not been properly maintained by respondent in a serviceable condi
W.VA.j REPORTS STATE
COURT OF CLAIMS Iii
tion and that the negligent maintenance of the drain coupled with the overflow
of water unable to pass through it, did damage the bottom land of the claimant
without any fault on his part. The claimant, however, claimed damages in the
amount of $700.00 and this amount is unsubstantiated by the evidence. The
evidence discloses that claimant paid approximately $115.00 an acre for the 18
acre tract, a portion of which was bottom land and a larger portion of which
was on the hillside. The only evidence as to any amount of damages sustained by
claimant was his testimony that he had expended the sum of $100.00 for fertilizer, seed and labor in
an effort to recondition the bottom land prior to the 1967 flooding, and that
this had all been washed away.
After consideration of the petition. the exhibits, and the testimony of
claimant and the witnesses for the respondent, it is the opinion of this Court
that this claim is within its jurisdiction, that the claimant by a
preponderance of the evidence has sustained the a1leations of his petition of
negligent maintenance of the drain in auestion by the respondent and that this
claim is a valid one against the State of West Virginia, which in equity and
good conscience should be paid. It is accordingly the judgment of this Court
that the claimant, Henry A. Beasley, should recover the sum of flOO.00 and he
is hereby awarded said sum.
Opinion issued July 2, 1968
C. A. ROBRECHT COMPANY, INC.
vs.
DEPARTMENT OF MENTAL HEALTH
(No.
D-14)
Joseph M. Brown, for claimant
Thomas P. O’Brien, Assistant
Attorney General, for respondent.
Jones. Judge:
This
claim is on an account .for prduc, e’d.r.d by U Department of Mnta1 Heeith and deilveri by the cle$wi* C.
112 REPORTS STATE COURT OF CLAIMS [W. VA.
A. Robrecht, Inc., to the West Virginia Training School, also known as Cohn
Anderson Center, at St. Marys in Pleasants County, West Virginia. The total of the
several invoices is $83.75 and this amount has not been paid. The claimant also
claims interest on the account in the sum of $12.16.
The Department of Mental Health by its Director and the Attorney General filed
its answer herein admitting that the produce was ordered, received and used by
the Cohn Anderson Center and that the only reason said produce was never paid
for was that the claimant failed to submit invoices to the respondent prior to
the close of the fiscal year 1964-65. By agreement of the parties this claim
was submitted on the pleadings.
From the allegations of the petition and the admissions of the respondent it
appears that, except as to interest which under the pertinent statute may not
be allowed, this is a claim which in good conscience and equity should be paid
and therefore the Court is of opinion to and does hereby award the claimant, C.
A. Robrecht Company, Inc., the sum of $83.75.
Opinion issued July 2, 1968
CENTRAL ASPHALT PAVING COMPANY
vs.
STATE ROAD COMMISSION
OF WEST VIRGINIA
(Claim No. C-27)
Frank L. Taylor, Jr., Esquire, for claimant.
Thomas P. O’Brien, Assistant Attorney General,
Robert R. Harpold, Jr., Esquire, and
Theodore L. Shreve, Attorney at Law, for respondent. Singleton, Judge:
This claim was filed before the Attorney General of West Virginia, on June 29,
1967, was subsequently transferred to this Court after July 1, 1967, and came
on for hearing on the
W. VA.]
REPORTS STATE COUflT OF CLAIMS - 113
9th day of April, 1968. The original
petition was in the amount of $47,777.27 allegedly due to the claimant for
extra labor, materials, and additional engineering, performed and supplied by
the claimant to the State Road Commission in the performance of its contract of
road construction on Project 1-64-1 (48) 30, in Putnam County, West Virginia.
At the hearing, counsel for the claimant and respondent tendered a stipulation
of agreement relating to the basis of this claim, the pertinent parts of said
stipulation reading as follows:
“2. The claimant furnished the labor and materials specified in the contract
and has been paid in full therefor. However, this proceeding results from
Central’s claim that the respondents are indebted to it for labor and materials
the State Road Commission required the claimant to furnish above and beyond the
contract and for which the claimant has not been compensated. The respondents
agree that compensation for said labor and materials should be paid.
3. The claimant was required to
prepare the sub-grade on the project before
the claimant could proceed under its contract. The sub-grade item was the responsibility of another contractor under
another contract. However, the work
was not completed to the satisfaction of the State Road Commission and,
consequently, the claimant was required to complete the work in order to be
permitted to proceed under the terms and provisions of its contract. The cost
of completing the sub-grade preparation item is Seven Thousand Five Hundred
Dollars ($7,500.00).
The claimant was adversely affected because of a mistake in the State Road
Commission’s plans and specifications in that the plans miscalculated the
quantity of traffic bound base course material needed to complete the weigh
stations to be included in the project. The
claimant was required to crush and stockpile additional cubic yards of material
in excess of that called for in the plans and specifications. Further, it was
required to haul material to be used in completing the weigh stations from a
point twenty-two (22) miles away from the project. The cost to the claimant for
these services and for which it ought to be reimbursed
114 REPORTS
STATE COURT OF CLAIMS [W. VA.
is Eight Thousand Nine Hundred Eighty-three Dollars and Seventy-five Cents
($8,983.75).
4. All
other items claimed by Central Asphalt
Paving Co. in its petition originally filed with the Attorney General but
transferred to this Court are abandoned.
5, There is now due and owing from the respondents to the claimant the sum of
Sixteen Thousand Four Hundred Eighty-three Dollars and Seventy-five Cents
($16,483.75).”
Upon consideration of the ciaimants petition, the exhibits filed, the
stipulation, and the statements and representations of counsel for the
respondent, this Court is of the opinion that this claim is within the
jurisdiction of this Court and that the allegations as stipulated by the par
des do constitute a valid claim against the State of West Virginia which in
equity and good conscience should be paid, and accordingly, it is the judgment
of this Court that the claimant, Central Asphalt Paving Co., a corporation,
should recover the sum of Sixteen Thousand Four Hundred Eighty-three Dollars
and Seventy-five cents ($16,483.75), and it is hereby awarded this amount.
Despite the provisions of Parag’raph 6 of the stipulation above referred to,
this Court is not of the opinion that this claim arises under an appropriation
made by the Legislature of West Virginia during the fiscal year to which the
appropriation applies and that this is not a claim under an existing
appropriation and that, therefore, the payment procedure as set forth in
Chapter 14, Article 2, Section 19, of the Code of West Virginia, one thousand
nine hundred thirty-one as amended, is not applicable.
W. VA.]
REPORTS STATE COURT OF CLAIMS 115
Opinion issued July 2, 1968
CENTRAL
ASPHALT PAVING CO.
s.
STATE
ROAD COMMISSION
(C-28)
Frank L. Taylor, Jr., Kay, Casto & Chaney, for claimant
Thomas P. O’Brien, Robert R. Harpoid,
Jr. and Theodore L. Shreve, for respondent
Jones, Judge:
In 1961 the claimant, Central Asphalt Paving Co., was awarded a contract by the
respondent, State Road Commission, to furnish labor and materials for the
construction of a part of Interstate Route 64 in Cabell and Putnam Counties.
Before the claimant could enter upon the work provided for in the contract, it
became necessary under the direction and supervision of the State Road
Commission for the claimant to regrade the entire project in order to correct
the subgrade which had been undertaken by another contractor. The claimant was
compensated for the repair and material furnished under the terms of its
contract, but has not been paid for the extra labor and materials required by
the respondent to complete the project.
Upon the hearing of this claim, it was stipulated by counsel for the parties
that the foregoing statements are true. It was further stipulated that the fair
and reasonable cost of completing the extra work was $10,600.00, although the
amount set out in the claimant’s petition was $13,363.16, and that all other
items of damage claimed in the claimant’s petition are abandoned.
Upon consideration of the petition and the stipulation and statements of
counsel, the Court is of opinion that the petition and stipulation present a
valid claim against the State of West Virginia within the jurisdiction of this
Court, which in equity and good conscience should be paid, and accordingly, it
is the judgment of the Court that the claimant, Central Asphalt Paving Co.,
should recover, and it is hereby awarded the sum of $10,600.00.
116 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion issued July 2, 1968
WARREN CHAMBERLAIN and JUSTINE
CHAMBERLAIN
vs.
STATE ROAD COMMISSION
(No. D-15)
Frank T. Litton and Jack W.
Del3olt, for claimant.
Thomas P. O’Brien, Assistant Attorney
General, and Robert R. Harpold, Jr., for respondent.
Jones, Judge:
The claimants’ petition alleges that on or about September 30, 1965, in the
City of New Cumberland, in Hancock County, negligent blasting by a construction
crew of the State Road Commission caused damage to the claimants’ residence in
the amount of $110.16.
At the hearing of this claim, the respondent filed a stipulation in writing
setting forth that it had made a thorough investigation of the facts and
circumstances giving rise to the claim, and that based thereon, it believes the
facts alleged by the claimant are true and the damages claimed are reasonable.
Upon consideration of the petition and the stipulation and statements of counsel,
the Court is of opinion that the petition and stipulation present a valid claim
within the jurisdiction of the Court and against the State Road Commission
which in equity and good conscience should be paid and, accordingly, it is the
judgment of the Court that the claimants, Warren Chamberlain and Justine
Chamberlain, should recover and they are hereby awarded the sum of $110.16.
W. VA.)
REPORTS STATE COURT OF CLAIMS 117
Opinion issued July 2, 1968
KATHERINE CHATFIELD
vs.
STATE ROAD COMMISSION
OF WEST VIRGINIA
(Claim No. D-33)
Robert J. Louderback, Attorney at Law, Sprouse,
McIntyre & Louderback, for
claimant
Thomas P. O’Brien, Assistant Attorney General, and Robert R. Harpold. Jr., Attorney at Law, State Road Commission, for respondent.
Singleton, Judge:
This claim was filed before this Court on November 14, 1967, and set down for
hearing on the regular hearing docket for the 15th day of May, 1968. At that
time evidence on behalf of the claimant was offered. The witness for the
respondent was unavailable and by agreement with counsel for the claimant, this
Court continued the matter until the 24th day of lVIay, 1968, for the purpose
of respondent presenting its evidence. This evidence was taken on the 24th day
of May, 1968, and the case submitted.
The evidence discloses that the claimant was traveling on Sunday, October 22,
1967, in her 1963 Rambler automobile from her home in Whitmans, West Virginia,
to Logan, West Virginia, for the purpose of attending church. She was
accompanied by her two grandchildren, both teenagers, and was driving on U.S. Route 119,
near the outskirts of Logan, the route commonly being known as the “Boulevard.”
The roadway in question is a four lane highway at this point with a median
strip dividing the two north bound lanes from the two south bound lanes.
Claimant was operating her vehicle in the right hand lane of the two south
bound lanes and was proceeding at an approximate speed of 35 miles per hour.
The evidence further discloses that approximately four to six feet from the
edge of the right hand lane there is a precipitous rock cliff approximately 150
feet in height and that above this the ground slopes back up the mountain.
118 —__REPORTS STATE
COURT OF CLAIMS [W. VA.
The evidence of both claimant and respondent discloses that from time to time
rock slides occurred at this point from loose material, rock and dirt coming
off the mountain above the cliff arid on occasion some rocks dropping from the
cliff face itself. On the day in question, claimant noticed many small rocks
had fallen across both lanes of the roadway but these rocks did not make the
road impassable. As she approached the fallen rocks a large rock fell from the
hillside landing approximately ten feet in front of her automobile, she was
unable to stop to avoid striking the rock and her car ran upon this rock and
severly damaged her vehicle. The automobile had to be jacked up off the rock.
The evidence further discloses that there were no signs erected along the
highway at this point cautioning motorists to beware of falling rock or of rock
slides, even though the State Road Commission had knowledge of slides occurring
in this vicinity over the past several years and their maintenance crews had
always cleaned up the debris in each instance. At least one vehicle had been
struck by failing rock and the occupant injured within the past three or four
years. On other occasions the entire four lanes of the highway had been blocked
by slides and traffic had to be re-routed. On cross-examination, counsel for
the claimant elicited from the respondent’s witness, the County Road Supervisor
at the time of the accident, that this falling rock and debris on the road
could be prevented by further clearing of the hillside above the rock cliff,
that this type of work was beyond the normal maintenance functions of the
county road crew, but that no work had ever been done to his knowledge to
eliminate the hazard nor were there any signs warning of this hazard erected as
of the date of the accident in ques iion. Repairs to the automobile of the
claimant totaled $247.07, and this amount appears from the various estimates
submitted to this Court, and not disputed, to be a reasonable and necessary
amount.
Upon the record of the evidence before this Court, it would appear that the
opinion of the Supreme Court of Appeals of West Virginia. in the recent case of
State ex rel. Robert Vincent vs. Denzil Gainer, Auditor of the State of West
Virginia, 158 S. E. 2d l4, (1967) is controlling on the issue of negligence. It
would appear that the basis of negligence in the instant case is comparable to
the showing in the Vincent case in that rock and debris located at an elevation
of the side of the highway
W. VA.] REPORTS STATE COURT OF CLAIMS 119
where this accident occured and because of climatic and weather conditions from
time to time had been falling upon the highway travelled by the public, and at
the place in question rock and debris had fallen from time to time on occasion
blocking the highway. Notwithstanding these facts, no safety measure or
remedial construction work whatsoever was undertaken by the State Road
Commission or its employees according to the record. The evidence further shows
that no warning signs had been placed near this location and does not show any
protection provided, other than patrolling for the removal of fallen debris, or
any effort on the part of the State Road Commission to remove remaining debris
and rock on the hillside above the cliff which were likely to fall and did from
time to time fall. The evidence further indicates that the claimant was
travelling at a reasonable rate of speed and there is no indication of any
negligent act on her part, which, if present, would perhaps be a defense to a
finding by this Court of a moral obligation.
Upon consideration of the claimant’s petition, the exhibits filed, the record
of evidence made in this case, and the statement of counsel for the respective
parties, this Court is of the opinion that this claim is within the jurisdiction
of this Court and that a preponderance of the evidence sustaines the
allegations of claimant’s petition as constituting a valid claim against the
State of West Virginia, which in equity and good conscience should be paid.
Accordingly, it is the judgment of this Court that the claimant, Katherine
Chatfield, should recover the sum of $247.07 and she is hereby awarded this
amount.
120 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued July 2, 1968
INTERNATIONAL BUSINESS MACHINES
CORPORATION
vs.
DEPARTMENT OF FINANCE AND ADMINISTRATION
(No. D-42)
Thomas P. O’Brien, Assistant Attorney General, for respondent.
Jones, Judge:
Under contracts entered into by the Department of Finance and Administration,
the claimant, International Business Machines Corporation, furnished certain
equipment and services during the months of May and June, 1967. Invoices there-
for, in the total amount of $7,882.03, were submitted to the respondent in
July, 1967. As the invoices were for goods and services furnished and performed
in the prior fiscal year, they could not be processed for payment for the
reason that the appropriated funds had expired. The Department of Finance and
Administration, by its Commissioner and the Attorney General, filed its answer
herein admitting that the claim is valid and in the proper amount and
recommending that the same be paid. By agreement of the parties, this claim was
submitted on the record.
It appears from the record that the goods and services covered by the
claimant’s invoices were duly furnished to the Department of Finance and
Administration, that the amount claimed is fair and reasonable, and that in
equity and good conscience the same should be paid. Therefore, the Court is of
opinion to and does hereby award to the claimant, International Business
Machines Corporation, the sum of $7,882.03.
W. VA.]
REPORTS STATE COURT OF CLAIMS 121
Opinion issued July 2, 1968
RALPH E. PHILLIPS
vs.
STATE AERONAUTICS COMMISSION
(No. D-48)
Ralph E. Phillips, Claimant, in his own behalf.
Thomas P. O’Brien, Jr., Assistant Attorney General, for respondent.
Jones, Judge:
This claim is for legal services performed and costs advanced by the claimant,
Ralph E. Phillips, an attorney, for and on behalf of the respondent, State
Aeronautics Commission. The claimant was employed by the State Aeronautics
Commission to examine titles and to prosecute condemnation suits in Jackson
County, and the employment was specifically authorized in writing by the
Attorney General of West Virginia. The agreement was for the payment of $10.00
an hour and the claimant’s time sheet supports a charge of $1670M0. The court
costs advanced are shown to be $74.00, making a total claim of $1744.00. The
work consisted of examining titles to five parcels of land sought to be
acquired by the State Aernoautics Commission, preparing and instituting
condemnation proceedings against the owners of five parcels of land, and the
prosecution of two hearings before Commissioners and one jury trial.
An answer was filed by the State Aeronautics Commission by the Attorney General
admitting that the claimant was duly employed to perform the legal services in
question and that he has not been paid for such services or the costs advanced.
The claimant was the only witness who testified at the hearing of this claim.
Upon consideration of the petition and its exhibits, the answer of the
respondent and the evidence given by the claimant, the Court is of opinion that
this is a valid claim against the State Aeronautics Commission which in equity
and good conscience should be paid, and accordingly, the claimant, Ralph E.
Phillips, is awarded the sum of $1744.00.
122 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued July 2, 1968
SOUTHERN COALS CORPORATION
VS.
STATE ROAD COMMISSION
(No. D-21)
Lee M. Kenna, for
claimant.
Thomas
B. Yost, Assistant Attorney
General and Theodore
L. Shreve, for respondent.
Jones,
Judge:
According
to the record, the claimant in this case, Southern Coals Corporation, under a
paving contract with the respondent, State Road Commission, entered into in
January, 1964, and preparatory to commencing work thereunder, stockpiled slag
aggregate at the project where it was inspected and approved by the State Road
Commission and remained for several months. During July. 1965, the claimant
moved in its personnel and equipment to begin the concrete pavement. Thereupon,
the State Road Commission notified the claimant that the aggregate contained a
small amount of iron and would have to be removed and replaced. While the claimant
makes the uncontested averment that the presence of iron in the paving mix
would produce no adverse effect, the claimant was required to remove all of the
stockpiled aggregate and a two weeks’ delay in its work under the contract
resulted. The claimant alleges that it was required to expend the amount of
$3,143.31 for labor and equipment to remove and replace the stockpiled
aggregate. It further alleges that it was required to expend the additional sum
of $2,258.00 for supervisory personnel who were idled by the unnecessary delay,
and other items of overhead.
Upon the hearing of this claim, it was stipulated by the State Road Commission
that the facts and amount of damages alleged in claimant’s petition are true,
and the claim was submitted without the taking of any testimony.
Th Court has congidered the ption
and stipulation and
sttt
I counsel, and of opinion that the record
premnts
W. VA.) REPORTS STATE COURT OF CLAIMS 123
a valid claim within the jurisdiction of the Court and against the State Road
Commission which in equity and good conscience should be paid, and,
accordingly, it is the judgment of the Court that the claimant. Southern Coals
Corporation, should recover, and it is hereby awarded the sum of $5,401.31.
Opinion issued July 2, 1968
STATE
FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY
vs.
STATE ROAD COMMISSION
(D-52)
Thomas P. O’Brien, Jr., Assistant Attorney General and Robert R. Harpold, Jr., for respondent.
Jones, Judge:
The claimant, State Farm Mutual Automobile Insurance Company, alleges that on
June 1, 1967, the automobile owned by its assured, Betty Ruth Talbert, was
damaged in the amount of $36.05 by overspray from paint guns operated by State
Road Commission employees while painting near the Mercer County Courthouse. The
State Road Commission has stipulated that, based on a thorough investigation,
the facts alleged by the claimant are true and the amount claimed is
reasonable.
Accordingly, the claimant, State Farm Mutual Automobile Insurance Company, is
awarded the sum of $36.05.
124 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued July 9, 1968
ACIE W. ALBERT
ys.
STATE ROAD COMMISSION
(No. D-36)
Acie W. Albert, present in person
Thomas B. Yost, Assistant Attorney General and Thomas P. O’Brien, Jr., Assistant Attorney General, for respondent
Jones, Judge:
On October 24, 1967, the claimant, Acie W. Albert, a State Road Commission
employee, was helping another State Road Commission employee, Edward Starling,
who was in charge of blasting operations on the State Road Commission parking
lot in Mercer County. The claimant was inexperienced in such work and his
activities were mostly limited to tamping the powder put in holes by Starling,
who had 18 or 19 years experience in blasting. At the suggestion of Starling
and before the blasting was started, the claimant moved his Chevrolet
automobile to the farthest part of the state property, some 300 yards from the
blasting area. A rock from one of the blasts struck the windshield of the
claimant’s automobile and damaged it so that it had to be replaced at a cost to
the claimant of
$88.07.
It appears from the evidence that the claimant merely followed instructions,
and was not responsible for the size or intensity of the blasting shots. On the
other hand, it appears that Starling, with his years of experience, should have
more accurately anticipated the possible consequences of the blasting, and the
Court believes that his negligence was the direct cause of the
damage to the claimant’s automobile. It is the Court’s judgment that this is a
claim which in equity and good conscience should be paid and, therefore, the
Court awards the claimant the sum of $88.07.
W. VA.) REPORTS STATE COURT OF CLAIMS 125
Opinion issued July 9, 1968
C. A. ROBRECHT COMPANY, INC.
vs.
DEPARTMENT OF EDUCATION
(No. D-1OA)
Joseph M. Brown, for claimant
Thomas P. O’Brien, Jr., Assistant Attorney General, for respondent.
Jones, Judge:
This claim is for $1,720.79 for produce sold and delivered to Cedar Lakes, an
FFA and FHA Camp at Ripley, West Virginia, under the supervision of the
Division of Vocational Education of the State Department of Health. The
claimant also claims the sum of $215.11 interest on the account.
The claimant maintains a place of business at Parkersburg, West Virginia and
alleges in its petition that during the period from September 11, 1964 to June
9, 1965, it delivered produce to Cedar Lakes as shown by the invoices and
ledger account which were introduced into evidence. Each of the delivery
invoices in evidence show the name of the head cook or second cook purporting
to be signed by the person receipting for the delivery. The claimant’s
bookkeeper testified that she made up all of the invoices from orders furnished
her by salesmen and that she posted the several charges to the Cedar Lakes
ledger account from the receipted copies of the delivery invoices. At the
hearing it was shown that two invoices dated September 11, 1964 and September
16, 1964, totaling $33.05, were paid by a State warrant but there is no
evidence that any of the other invoices were paid. The ledger account and
supporting invoices show a continuation of charges but no credits from October
14, 1964 to July 16, 1965. Two drivers for the claimant testified that they
delivered produce to Cedar Lakes as shown on certain of the unpaid invoices.
The head cook at Cedar Lakes who was responsible for ordering produce testified
that she gave no orders, to the claimant
126 REPORTS STATE
COURT OF CLAIMS [W. V
during the period in question and that the signature on the invoices could not
be hers. The supervisor of the Camp during this period was in the military
service at the time of the hearing and was not available to testify. The
present supervisor testified that he searched for the alleged missing invoices
and found none of them in the files.
While much of the evidence in this claim is in direct conflict and the issues
are confused, the Court is of opinion that the claimant has proved its claim by
a preponderance of the evidence. The bookkeeper’s accounting appears to have
been in the regular course of business and the charges posted by her are
supported by a series of invoices and the testimony of the drivers who
delivered the produce shown on several of the invoices. Except for the $33.05
item, there is no contention on the part of the respondent that any of the
invoices were paid. By statute the interest claimed may not be allowed, but the
Court is of opinion that the principal claim is one which in equity and good
conscience should be paid, and, accordingly, an award is hereby made to the
claimant, C. A. Robrecht Company, Inc., in the amount of $1,687.74.
Opinion issued July 9, 1968
C. A. ROBRECHT COMPANY, INC.
vs.
DEPARTMENT OF EDUCATION
(No. D-1OB)
Joseph M. Brown, for claimant.
Thomas P. O’Brien, Jr., Assistant Attorney General, for respondent.
Jones, Judge:
This claim is for $573.66, plus $31.57 interest, for frozen foods sold and
delivered to Cedar Lakes, an FFA and FHA Camp at Ripley, West Virginia, under
the supervision of the Division of Vocational Education of the State Department
of Health. The basis of this claim is substantially the same as that recited in
W. VA.]
REPORTS STATE COURT OF CLAIMS 127
the Court’s opinion
filed contemporaneously herewith in the
claim of C. A. Robrecht Company, Inc., versus Department of Education (No.
D-1OA), and the Court’s view of the evidence and its conclusions in favor of
the claimant are the same.
The invoice of August, 1966, in the amount of $109.25, is shown to have been
paid; and it is the opinion of the Court that the remainder of the claim
excepting interest, in the amount of $464.41, in equity and good conscience
should be paid, and, accordingly, an award is hereby made to the claimant, C. A.
Robrecht Company, Inc., in the amount of $464.41.
Opinion issued July 12, 1968
EVERETT LEE AKERS
vs.
STATE ROAD COMMISSION
(Claim No. D-65)
Everett Lee Akers, Claimant, present in person
Thomas P. O’Brien, Assistant Attorney General, and Robert R, Harpold, Jr., Attorney at Law, for the respondent.
Singleton, Judge:
This claim was filed March 15, 1968, set on the hearing docket of this Court
for May 16, 1968, on which date the evidence of claimant and his witnesses and
that of respondent and its witnesses was heard and the case submitted to this
Court for decision. Claimant was not represented by Counsel.
It appears from the evidence that claimant leased a 1.2 acre tract of land
adjacent to New River from the Chesapeake and Ohio Railroad Company. at a
rental of $2.00 per year; that he was the lessee of this tract in July of 1967;
that on or about July 25, 1967. a State Road Commission employee, Mr. Spangler,
did drive a state bulldozer across the premises in question while movii it to
Marsh Fork, and that the bulldozer
broke down thereon; that Spanglers supervisor, witness Sweeney, did go to the
site, did observe a “No Trespassing” sian
erected by
128 REPORTS
STATE COURT OF CLAIMS [W. VA.
claimant, and after a conversation with claimant, did seek permission of the
Railroad and the claimant to remove the dozer. The dozer was subsequently
repaired and removed, exiting through the river bed and not re-crossing the
property in question.
Claimant testified that the passage of the bulldozer over his leased premises
destroyed three “rows” of strawberry plants and “covered up” a “setting” hen
and her eggs. As to this loss he is substantiated in part by the testimony of
witness Wade. Respondent witness Spangler, the operator of the bulldozer,
testified he saw only weeds and brush, and no “crops.”
It is the ppinion of the Court that the Evidence clearly discloses an
unintentional, but nevertheless actual, trespass on claimants lands, and that
the claimant is entitled to any damages he has sustained as a result. Claimant
alleged the sum of $1,000.00 in damages, but introduced no evidence that would
begin to sustain this amount. Questioned by members of the Court and by counsel
for the respondent, claimant declined, or was unable, to even state the cost of
his strawberry plants or his hen. This Court has therefore exercised its
statutory investigative powers to arrive at some reasonable value for these
items.
After consideration of all the evidence, this Court is of the opinion that
claimant is entitled to payment for the damages he sustained as a result of the
trespass by respondent; and it is further the judgment of this Court that the
claimant, Everett Lee Akers, should recover, and he is hereby awarded the sum
of twenty-five dollars ($25.00).
W.VAJ
REPORTS STATE COURT OF CLAIMS 129
Opinion issued July 12, 1968
Norma Jean Byrd Claim No. D-35
Louis A. Earles Claim No. D-64
Leslie J. Borbely, M. D., Claim No. D-68
vs.
Department of Mental Health
State of West Virginia
Claimants appeared in person, without counsel.
Thomas P. O’Brien, Assistant Attorney General, for respondent.
Singleton, Judge:
These three claims were filed respectively on November 14, 1967, March 8, 1968
and March 12, 1968, each against the Department of Mental Health, were
consolidated without objection, and heard by this Court on May 16, 1968.
Claimant Borbely was the chief witness for himself and the other two claimants,
both of whom testified briefly in corroboration of his testimony. Claimants were
cross-examined by counsel for respondent, but no evidence was offered on behalf
of respondent to dispute claimants’ testimony.
The evidence is uncontradicted that the Department of Mental Health, State of
West Virginia, received a grant from the United States Department of Health,
Education and Welfare, National Institute of Mental Health for the purpose of
treating alcoholic patients at Spencer State Hospital during the years 1964 and
1965. It is equally clear that this grant was conditioned on the State of West
Virginia providing an adequate follow-up program of treatment and therapy for
these alcoholic patients after their discharge from the hospital. An additional
grant of Ten Thousand Dollars was made by the Federal Government for payment of
personal services for the professional staff to conduct this follow-up program.
Claimants were each employed at Spencer State Hospital. They were
professionally qualified and accepted by the National Institute of Mental
Health to conduct the follow-up program.
130 REPORTS
STATE COURT OF CLAIMS 1W. VA.
With the consent of the Hospital
Superintendent, and the Director of the Department of Mental Health, claimants,
in their off-duty hours, did conduct this program by traveling to Parkersburg,
West Virginia, and conducting therapy and other treatment on an out-patient
basis. These facts are further corroborated by the documentary evidence
submitted by the claimants. Each of the claimants made ten trips for these
purposes, and the fee approved as payment for these services was Fifty Dollars
per trip each for claimants, Earles and Byrd, and Sixty Dollars per trip for
Dr. Borbely to be paid from the federal grant made for this particular
follow-up program. These extra services rendered by claimants were un-related to
their respective duties at Spencer State Hospital and not in diminution
thereof, being performed in their “off-duty time.” (See Claimants’ Exhibit No.
1.) Requisitions for payment for these services from the federal grant in
question were submitted by claimants to the Department of Mental Health, and
were refused by the comptroller thereof on the ground that the state salary
received by each was for a twenty-four hour working day. The evidence further
discloses that the Director of Mental Health requested an opinion from the
Attorney General of West Virginia on the question of legality of these
payments, said request being dated April 9, 1965, but that no opinion was
thereafter rendered or reply received to tnis request.
It also appears from the evidence that federal funds in the amount of $2,500.00
have continued to be made available to the Department of Mental Health for the
payment of the services in question, and that an item in the amount of
$1,600.00 appears in the Department expenditure schedule for fiscal 1967-68 for
this purpose.
After consideration of all of the testimony and documentary evidence, this
Court is of the opinion that these are valid claims against the State of West
Virginia that in equity and good conscience should be paid. It is accordingly
our judgment that the claimants be and they are hereby awarded the following
amounts:
Norma Jean Byrd, Claim D-35 $500.00
Louis A. Earles, Claim D-64 500.00
Leslie J. Borbely, M.D., Claim D-68 600.00
W. VA.]
REPORTS STATE COURT OF CLAIMS 131
It is not clear to this Court if the federal funds available for payment of
these respective awards are available and unencumbered in the budget of the
Department of Mental Health for fiscal 1968-69. If such is the fact, and the
Director of the Department of Mental Health so certifies, this Court
recommends, and it is our judgment that these respective awards be paid under
the payment procedure as authorized and set forth in Chapter fourteen, Article
two, Section nineteen, of the Code of West Virginia, One Thousand Nine hundred
Thirty-one, as amended. If such an unencumbered current appropriation does not
exist in said Department budget for fiscal 1968-69, then this Court is of the
opinion that these awards should be paid in accordance with the regular payment
procedures for awards as outlined in Chapter Fourteen.
Opinion issued July 12, 1968
C. A. ROBRECHT COMPANY
vs.
DEPARTMENT OF MENTAL HEALTH
STATE OF WEST VIRGINIA
Claim No. D-12
James M. Brown, Esquire, Ronning and Bailey, Parkersburg, for the claimant.
Thomas P. O’Brien, Assistant Attorney General, for the Respondent.
Singleton, Judge:
This claim was filed September 18, 1967, and the evidence relating thereto
offered by claimant and respondent at a hearing held by this Court on April 8,
1968.
This claim is in the principal amount of $135.96, and the claimant further asks
the additional sum of $21.76 as interest. No evidence was offered by claimant
to prove that the contract under which the goods in question were supplied
provided for the payment of interest. The fact that the invoices rendered
contained a printed statement that six (6%) percent interest
132 REPORTS STATE COURT OF CLAIMS [W. VA.
would be charged on “past due accounts” is not, in the opinion of this Court,
sufficient to satisfy the statutory requirement. See Code Chapter 14, Article
2, Section 12. Accordingly, the claim for interest is hereby disallowed.
This claim involves twelve invoices for fresh fruits and vegetables supplied
and delivered, per order, to Lakin State Hospital Commissary, an institution
operated by the West Virginia Department of Mental Health. In its answer to
claimants petition, respondent admits that the fruits and vegetables itemized
on seven of said invoices were “ordered, received and used by said hospital”.
These seven invoices total $69.31, and would have been paid had they been
timely processed during fiscal year 1964-65 under current appropriations.
The remaining five invoices, totaling $66.65, for fruit and vegetables
delivered during this same period, were not accompanied by driver delivery
slips receipted by the signature of an authorized hospital or commissary
storekeeper.
The claimant offered in evidence the original book records and ledger sheets
relating to these transactions, together with the original delivery receipts
evidencing the quantities and prices of the items delivered, the date thereof,
and the name of the delivery man. The five transactions in question are widely
spaced as to time, and involved deliveries made on July 2, July 30, August 6,
September 24, and November 27, all in 1964. The two delivery men involved, one
of whom is no longer employed by claimant, each testified that they delivered
the goods covered by the respective delivery slips to the hospital, that the
goods were left outside the door of the storeroom or commissary, this being the
accepted and customary delivery method when the storeroom was not open and no
one was present to sign for the goods.
Respondents witness Miller, storekeeper at Lakin State Hospital during 1964-65,
testified that he could not recollect the deliveries in question (although
recognizing the deliverymen), that he could not say the deliveries were not
made and the goods not received, but that it would have been possible for the
drivers to obtain receipts therefore had they gone to other parts of the
hospital. It further appears from the evidence that the invoices in question
represent a very small portion of the
W. VA.]
REPORTS STATE COURT OF
CLAIMS 133
business conducted between claimant and
respondent during this period.
While this Court is aware of the constitutional prohibitions relating to
payment by the state for goods and services, after consideration of all the
evidence and exhibits, we are of the opinion that claimant has, by a preponderance
of the evidence established the ordering of and the delivery of the goods in
question and thereby proven a valid claim against the State that in equity and
good conscience should be paid. It is accordingly the judgment of this Court
that the claimant be and it is hereby awarded, the sum of $135.96.
Opinion issued July 12, 1968
C. E. WETHERALL d/b/a
C. E. WETHERALL ‘COMPANY
vs.
STATE ROAD COMMISSION
OF WEST VIRGINIA
(Claim No. C-24)
Carney M. Layne, Esquire, for claimant
Thomas P. O’Brien, Assistant Attorney General, Robert R. Harpold, Jr., Esquire, and Theodore L.
Shreve, Esquire, for respondent.
Singleton, Judge:
This claim was filed with the office of the Attorney General of West Virginia,
on June 27, 1967, subsequently transferred to this Court on July 1, 1967, and
the evidence of claimant and respondent taken by this Court at a hearing held
on April 10, 1968.
This claim is in the amount of $15,380.17, the sum of $8,097.25 thereof being
admitted by the State to be due the claimant in accordance with the final
estimate prepared by the State Road Commission on the project in question; and
the sum of $7,282.92
134 REPORTS
STATE COURT OF CLAIMS [W. VA.
claimed as compensation for extra work performed and equiprnent and material
furmshed by claimant for flood clean-up operations on the project as ordered by
the State Road Commission. Claimant had been awaraed a contract for excavating,
draimng, grading and surfacing approximately 2.8 miles of the Bramwell, West
Virginia-Virginia State Line Road in Mercer County, West Virginia, Project
S-6474, said contract being dated November 21, 1955. rIhe work for which
additional cornpensatioll is claimed resulted from a flooding by the Bluestone
River in late January and early February of 1957. Claimant had completed all
sub grade work and removed his equipment from the project. in December of 1956,
contemplating a resumption of work on the pioject as soon as weather permitted
in 1957, The cialniant testified in person and submitted as documentary evidence
the daily work report sheets covering the emergency flood ciean-up work, this
work having been done during the period trorn February 26, 1957, through March,
1957. Claimant’s superintendent on the project who prepared the daily report
sheets also teslifled in behalf of the claimant. Claimant testified that Mr.
Scott Biankensnip of the State Road Commission District Office in Princeton met
with him at the project site in early Feoruary, requested that he return with
his crew to remove the flood debris that had accumulated on the project and
around a briuge over the Blues tone River near Brarnwell, advising that the
State Road crew themselves were unable to do all of the work involved and were
needed elsewhere in the District; that he should keep a recora of the expenses
involved and turn the same in as a “force account” for payment. No executed
force accoint work order was ever deliverea to the claimant by the State Road
Commission for the work involved, but claimant’s evidence is to the effect that
he proceeded to move his men and equipment on the job and to perform the work
outlined by Mr. Biankenship. Mr. Blankenship was summoned as a witness by
claimant and appeared in response to said summons. The at- tol ney for the
claimant thereafter advised the Court that he had interviewed Mr. Blankenship
and that Mr. Blankenship said that inasmuch as the events had occurred over
eleven years ago that he could not recollect the pertinent details and felt
that he could contribute no information concerning this claim. iVIr,
Blankenship was, therefore, not called as a witness by the claimant, nor was he
called as a witness by the respondent.
W. VA.]
REPORTS STATE COURT OF CLAIMS 135
Claimant further offered in evidence (filed as Exhibit A with his Petition) a
complete breakdown of the accounts for labor, material, equipment and overhead
constituting the $7,282.92, claim for extra work.
The evidence for the respondent consisted of the testimony of Mr. Levi Scott,
now retired, formerly respondent’s inspector on the project in question, and
(Respondent’s Exhibit No. 1) the official diary maintained by Mr. Scott for the
project covering the period in question. The official diary and the daily
reports submitted by claimant (Claimant’s Exhibit No. 1) at first glance appear
to be completely conflicting for the days in question, but a careful day-by-day
examination of same by the Court indicates that they coincide in the majority
of instances for the work that was done on any particular day during this
period and are identical in reflecting the visits of State Road Commission
officials and engineers to the project. Mr. Scott’s testimony corroborated the
occurrence of the flood but tended to minimize the damage caused thereby and
any extra work involved on the part of claimant, it being the contention of the
respondent that claimant was reimbursed for any such extra work through the
unit price items of payment as set forth in the contract and final estimate and
that particularly claimant was reimbursed for extra stone that had to be used
to replace base stone spoiled or damaged by the flood.
The final voucher es cimate covering this contract and setting forth the amount
of $8,097.25 due the claimant by the respondent was introduced into evidence
(Claimant’s Exhibit No. 2). It is apparent from the face of this estimate that
the amount acknowledged to be due to the claimant by the respondent is made up
of the sum of $584.59 for a railroad liability insurance policy premium on
Force Account No. 6, and the amount of $7,512.66 in retained percentage under
the terms of the contract. The original contract in question was in the amount
of $228,- 417.05, with approved overruns in labor and quantities in the amount
of $158,048.29, underruns of $10,247.47, resulting in a net final contract
figure of $376,217.87.
No where on the face of the final estimate does it appear, despite the
contention of the respondent, that any payment was made to the claimant for the
extra work he did perform in
136 REPORTS STATE
COURT_OF_CLAIMS [W. VA.
flood clean up. No evidence was offered by respondent to point out any of the
items under the contract that had been increased in quantity with a resultant
increase in payment to the claimant, as a result of claimant’s work and labor
in flood clean up. Respondent witness Scott did testify that additional stone
was used to replace stone in the road bed that had to be removed as a result of
flood damage and that claimant was paid for this additional stone at the unit
price under the contract. It should be pointed out that no item is included in
this claim for any stone or for any material other than fuel for equipment use.
In comparing Claimant’s Exhibit A, filed with its petition, and Claimant’s
Exhibit No. 1, admitted in evidence at the hearing, (the daily report sheets)
the Court questions the propriety of charging the entire working day or longer
in some instances of the project superintendent, R. C. Wetherall, solely to
supervision of the flood clean-up work when, in fact, the daily report sheets
and official diary (Respondent’s Exhibit No. 1) reflect that considerable wOrk
under the regular contract was carried on during these particular days. R. C.
Wetherall also appears as a dozer operator on at least two days for a full days
work, but his wage rate is extended at a rate in excess of that paid to the
dozer operator by the claimant on the same exhibit. While no question
concerning these discrepancies was raised at the hearing by either respondent
or claimant, it is the Court’s duty and it has the authority to scrutinize the
documentary evidence very closely.
After careful consideration of the evidence and exhibits of both claimant and
respondent, this Court is of the opinion that the claimant, by a preponderance
of the evidence, has proven that he actually did perform work and labor and
furnish material at the request of the State Road Commission for emergency
flood clean up over and above the work and labor contemplated under his
contract with the State Road Commission for the improvement of the Bramwell, West
Virginia-Virginia State Line Road, and that the final estimate as prepared by
Respondent for this contract does not reflect that claimant was compensated for
any of this extra work; and that claimant has established a claim before this
Court that in equity and good conscience should be paid.
W. VA.]
REPORTS STATE_COURT OF CLAIMS 137
The Court is of the opinion therefore to award to the claimant the sum of
$5,506.55, for the emergency work performed in flood clean-up, the original
amount of this flood clean-up claim having been reduced by this Court as a
result of the Court’s question as to the propriety of certain labor charges
made by the claimant in its exhibit A.
The claimant is therefore and he is hereby awarded the total sum of $5,506.55.
Opinion issued July 12, 1968
KENNETH G. KEITH
vs.
STATE ROAD COMMISSION
OF WEST VIRGINIA
(Claim No. D-50)
Thomas P. O’Brien, Assistant Attorney General, and Robert R. Harpold, Jr., Esquire,
for respondent.
Singleton, Judge:
This claim was filed January 8, 1968 and placed upon the hearing docket of this
court for May 16, 1968.
The case being called for hearing, counsel for respondent and the Attorney
General tendered a written stipulation of agreement as to the facts alleged in
claimants petition for the consideration of this court. There was no appearance
on behalf of the claimant, in person or by counsel.
It appears from the petition and exhibits filed therewith that claimants
automobile was lawfully parked in a private parking area on November 10, 1967,
in Ritchie County, W. Va. It further appears that a State Road Commission
vehicle commonly called a “low boy,” or “low boy trailer,” being operated on
the state highway adjacent to this parking area on state business and by a
state employee. While passing the parking area, a wheel came off the “low boy”
and rolled with considerable force into the side of claimants vehicle,
necessitating repairs thereto amounting to $52.53.
138
REPORTS STATE COURT OF CLAIMS [W. VA.
Upon consideration of the petition, the
exhibits, the stipulation, and the estimate of repairs filed herein, the court
is of the opinion that this claim is within the jurisdiction of this court and
the facts as stipulated constitute a valid claim against the State of West
Virginia which in equity and good conscience should be paid, and the costs of
repairs made being reasonable, that the claimant, Kenneth G. Keith, should
recover, and he is hereby awarded the sum of $52.53.
Opinion issued July 12, 1968
NATIONAL
RUBBER & LEATHER COMPANY,
A CORPORATION
vs.
STATE ROAD COMMISSION OF WEST VIRGINIA
(Claim No. C-i)
Harry N. Barton, Esquire, for
claimant.
Thomas B. Yost, Assistant Attorney
General, and Robert R Harpold, Jr., Esquire, for
Respondent.
Singleton, Judge:
This claim was filed before the Attorney General on December 10, 1965, the
accident from which it stems having occured June 30, 1964. The claim was
subsequently transferred to this Court on July 1, 1967, and set down for
hearing on February 23, 1968, at which time it was dismissed for claimant’s
failure to appear and prosecute same. On February 26, 1968, claimant’s counsel
moved this Court that the claim be reinstated and reset for hearing on the
ground that he was hospitalized on the prior date and unable to appear. The
Court, after consideration, sustained said Motion, reset this claim for hearing
on May 15, 1968; at which time the evidence for claimant and respondent was
introduced.
The evidence for claimant discloses that Richard Lee Crowder, who testified on
behalf of claimant, was operating claimant’s truck on West Virginia State Route
4 on the afternoon of June
W. VA.J
REPORTS STATE COURT OF CLAIMS 139
30, 1964, in Clay County, West Virginia,
that claimant’s vehicle was proceeding in a northeasterly direction and
following a State Road Commission truck and that it had been following said
truck for approximately one-fourth to one-half a mile, that claimant’s driver
in a straight stretch of the road then proceeded to overtake and attempt to pass
said State Road Commission truck, sounding his horn and proceeding at a
reasonable speed: that when claimant’s vehicle was partially along side said
State Road Commission vehicle, the State Road Commission vehicle turned to the
left and struck claimant’s vehicle. The evidence of claimant is further that
the left front wheel of the State Road Commission vehicle and the right front
wheel of claimant’s vehicle locked together and that the two vehicles veered to
the left off the roadway and then back onto the roadway and came to a halt some
distance down the road off to the right hand side of said road. There were no
personal injuries and claimant contends its vehicle was damaged in the amount
of $1,016.41, which amount was stipulated as reasonable and not questioned by
respondent. Certain photographs were offered into evidence by claimant and
admitted, depicting the area where the accident occured and showing that the
highway was lined with a dotted line indicating a passing zone and disclosing
the two vehicles side by side on the right hand side of the road after the
accident occured. Respondent’s principal evidence was given by William R.
Taylor, driver of the State Road Commission truck involved, who testified that
he was aware that claimant’s vehicle was behind him and had been for
approximately one-fourth of a mile; that when he prepared to make a turn off
onto Secondary Route 14, he gave no hand signal but did activate his automatic
left turn signal on his vehicle, although he testified that he did not know
whether the turn signal was operating or not; that he had heard claimant’s
driver sound his horn to pass but that it appeared to him the horn was sounded
just prior to the time that his vehicle collided with claimant’s vehicle, that
the two vehicles did lock together as testified to by claimant’s driver and
that while he had a rear view mirror he did not answer directly whether or not
he had looked into it to observe any traffic coming from the rear prior to
turning, but again responded that he knew the claimant’s truck was behind him.
Counsel for respondent moved the Court that the claim be dismissed on the
ground that
140 REPORTS
STATE COURT OF CLAIMS [W. VA.
claimant’s vehicle was passing respondent’s vehicle within 100 feet of an
intersection in violation of Section 6, Article 7, Chapter 17-C of the Code of
West Virginia, and that the unpaved Secondary Road joining with State Route 4
at this point constituted an intersection as the same is defined in Section 42,
Article 1, Chapter 17-C of the Code of West Virginia. The respondent further
introduced pictures indicating that State Route 4 at this point is double lined
to prohibit passing and that signs are erected indicating an intersection.
Cross-examination of the witness Calvert indicated that these pictures were
taken on February 1, 1968, approximately four years after the accident.
This Court is of the opinion that the principles enunciated by the Supreme
Court of Appeals of the State of West Virginia in the case of Adkins vs.
Minton, decided November 29, 1966, 151 S. E. 2d 295, control the legal
questions presented by the evidence in this claim. The Supreme Court in this
opinion reaffirms its interpretation of Section 8, Article 8, Chapter 17-C of
the West Virginia Code, providing that not only should an appropriate signal be
given by a person making a turning movement but also that any such turning
movement made by a vehicle from a direct course upon a roadway shall not be
done unless and until such movement can be made with reasonable safety. To
quote the Supreme Court, “In other words, the statute provides an additional
requirement imposed upon the driver of a forward vehicle attempting to make a
left turn into a passing lane other than merely giving the proper signal. The
correlative statute requires the driver of a vehicle overtaking and passing
another vehicle proceeding in the same direction to give an audible signal and
pass to the left thereof at a safe distance. Code, 17C-7-3 (a), as amended.”
By respondent’s driver’s own testimony he has failed to comply with that
important additional requirement of the statute providing that one intending to
make a left turn must ascertain if it can be done with reasonable safety. This
is especially true inasmuch as he admitted that he was aware that claimant’s
vehicle was behind him. Respondent’s driver, while confident that he switched
on the automatic left turn signal, did not know whether or not it was working
and verified that he did not give any hand signal. In view of this evidence it
is the
W. VAJ
REPORTS STATE COURT OF CLAIMS 141
opinion of this Court that respondent’s driver was guilty of negligence as a
matter of law in accordance with the opinion of the Supreme Court of West
Virginia in the above referred to case of Adkins vs. Minton. It is further the
opinion of this Court that the physical evidence as shown by the pictures taken
at the time of the accident discloses that the State Road Commission, itself,
did not consider the joining of this unpaved secondary road with State Route 4
to constitute an intersection within the statutory definition of same, at least
at the time of this accident. For this reason the motion of the respondent
asking for the dismissal of this claim on the ground that violation of this
statute constitutes prima facia negligence contributory to the accident and
asking for dismissal of the claim is over-ruled.
After consideration of all of the evidence, including the documentary evidence
introduced and the petition and exhibits, this Court is of the opinion that it
has jurisdiction of this claim and so finds; that the damage sustained to
claimant’s vehicle was solely caused by the negligence on the part of
respondent’s driver and that this claim is one that in equity and good
conscience should be paid by the State.
It is, therefore, the opinion of this Court that the claimant be, and he is
hereby awarded the sum of $1,016.41.
Opinion issued July 12, 1968
RAYMOND R. SMITH
vs.
STATE ROAD COMMISSION
OF WEST VIRGINIA
(Claim No. D-2)
Donald A. Lambert, Esquire for the Claimant.
Thomas P. O’Brien, Esquire, Assistant Attorney General and Robert R. Harpold, Jr., Esquire, for the respondent.
Singleton, Judge:
This claim was filed with this Court on September 8, 1967, placed on the
hearing docket and evidence of claimant and respondent presented to the Court
on May 16, 1968.
142 REPORTS_STATE COURT OF CLAIMS [W, VA.
Claimant operated a private dumping facility for the disposal of solid waste,
garbage and trash and litter on a 38 acre tract near South Charleston, West Virginia.
adjacent to State Route 12/2, during the years 1964. 1965 and until October,
1966. Claimant testified that State Road Commissioner, Burl Sawyers and other
State Road officials visited him in the fall of 1964, advised him that the
State Road Commission had lost certain dumping privileges at Montgomery, West
Virginia, and orally contracted to use his dump for the disposal of garbage and
litter for the sum of $12.00000 per year. Claimant further testified that he
volunteered that the State could dump that portion of garbage and litter picked
up on Route 60 in Kanawha County, free of charge, if the State would improve
the State Road (12/2) providing access to his dump. Claimants dump was also
being used by commercial trash and garbage collectors, each of whom paid
claimant the sum of $4.00 for each large truck load deposited on his premises.
Respondent offered the evidence of Chilton Stalnaker, Supervisor of District
No. 1, State Road Commission, during 1964, who testified that claimant called
him in the fall of 1964, requesting certain repairs to State Route 12/2, that
his district had just lost its dumping privileges in Montgomery, for the
disposal of the trash, placed in the litter barrels in the county and that in
return for Stalnakers assurances of repairs and improvements to Route 12/2,
claimant agreed to permit the State Road Commission trucks to dump on his
premises, and that he did not anticipate that it would be more than one load a
day. Stalnaker stated he had no knowledge of any other arrangements made by the
Road Commission for use of the dump. Respondent further offered in evidence the
dollar amounts expended by the Road Commission for maintenance (materials,
labor and equipment on Route 12/2 for the years 1964 ($427.58), 1965 ($600.08),
1966 ($5.84), 1967 ($998.88), and for 1968, to the date of hearing ($0.00).
Despite some confusion on the part of claimant as to the date, this Court is of
the opinion that it is quite clear that the Road Commission ceased using this
dump in October or November of 1966, the dump having been ordered closed by the
Circuit Court of Kanawha County on application of the West Virginia Department
of Health.
W.
VA.] REPORTS STATE COURT OF CLAIMS 143
Other witnesses for the claimant included
commercial garbage haulers using his facility, and pig food scavengers, each of whom testified that they were at
the dump five days a week during most of the period in question and they had
personally observed State Road Commission trucks making three to five trips
daily dumping garbage and trash on claimant’s premises. Claimant further
testified that he covered the deposited garbage and debris with earth cover,
using a bulldozer and that when he was unable to do this, he hired a man and
dozer to perform this task at a cost of $150.00 per week.
Claimant asks this Court to award him the sum of $4,000.00 for the use of his
dump by the State Road Commission for the period in question, and does not
pursue his claim on the alleged $12,000.00 annual oral contract set forth in
his testimony.
Despite the evidentiary conflict surrounding the beginning of usage of
claimants dump by the State Road Commission, the evidence is clear that it was
used for a period from the fall of 1964 until on or about October of 1966. The
evidence is further clear that claimant agreed to permit the State to dump free
the litter barrel refuse from Route 60, in exchange for improved maintenance of
State Route 12/2. His counsel argues that a pre-existing obligation in law
(maintenance of State Road 12/2) is not a legal consideration for such a
contract, and this is generally correct; but his counsel further stated to this
Court that “of course, he made the deal and should be held to it.” In this the
Court concurs, and finds that one load a day was entitled to be dumped free. By
the same token, we cannot arbitrarily overlook the evidence of claimant and
other witnesses to the effect that respondents trucks dumped three to five
loads a day, five days a week. Considering all of the evidence, and using the
lesser amounts in each instance, this Court finds that respondent did use
claimants dumping facilities an average of three times per day, five days per
week over an approximate twenty month period, and that one of these loads each
day was considered to be free. And further considering the evidence as to
claimants normal charges to others, and the evidence as to his expense in
treating and covering the refuse deposited, no evidence being offered by
respQndet as to the prevailing rates for such services, this Court is of the opinion
144 REPORTS
STATE COURT OF CLAIMS [W. VA.
that three dollars per load is an equitable rate for the services afforded.
It is therefore the opinion of this Court that claimant has rendered services
to the State of West Virginia for which he should be compensated and that in
equity and good conscience should be paid; and he is accordingly awarded the
sum of
$2,400.00.
Opinion ssuec1 July 26, 1968
CHARLES C. OLIVER
vs.
STATE ROAD COMMISSION
STATE OF WEST VIRGINIA
(Claim No. D-24)
Claimant appearing in person.
Thomas B. Yost, Assistant Attorney General, and Robert R. Harpold, Jr., representing the State.
Ducker, Judge:
The petitioner, Charles C. Oliver, claims damages in the sum of $175.94 by
reason of alleged negligence on the part of the State Road Commission on June
9, 1967 in allowing a large rock to be or remain in the Browns Creek Road in
Pocahontas County, which rock was struck by petitioner’s wife, Louise Oliver,
in driving his 1967 Pontiac automobile on said road, damaging the oil pan and
other under parts of claimant’s car.
The evidence shows the Road Commission road crew was cleaning ditches at that
place in the afternoon of that day, pulling the dirt out in the road and
picking it up with an end loader and hauling it out about two feet on the
pavement. A “men working” sign had been placed ahead on the curving road about
8/10th of a mile according to the complainant’s witness and 2/10th to 3/10th of
a mile according to the respondent’s witness, from the place of the accident.
The road was dry and the petitioner’s car was traveling between twenty and
thirty miles an hour. The driver of the car admitted she saw dirt
W. VA.]
REPORTS STATE COURT OF CLAIMS 145
where ditches had been cleaned, but she said it had been cleaned until she came
to the turn in the road before she struck the rock, and that the rock was a
“huge rock” among small rocks and dirt, and that she did not see the rock until
after she had hit it. The road is a two lane road and no traffic was then
approaching claimant’s car. There was no watchman directing traffic and no
hauling truck in sight.
The respondent denies items of damages such as the cost of an oil filter, oil
pump, distributor cap and some of the labor charge of $70.25 as not having been
caused by the accident. The claimant’s loss was partly covered by liability
insurance, but there is no subrogation claim filed herein.
A review of these facts clearly indicate to this Court that the driver of
claimant’s car was apprised of the fact that men were working on the road at or
near the place of the accident, that she saw dirt on the road from the ditches
but failed to see a huge rock in the road which she should have seen, or if
seen she could have gone around on the two lane road with no vehicles
approaching. These facts amount to such negligence on her part as to prevent
her from recovering damages on account of this accident. Whether the Road
Commission was negligent in not taking more precautions under the circumstances
is doubtful, but inasmuch as we are of the opinion that there was at least
contributory negligence on the part of the driver of claimant’s car, we must
hold that there can be no recovery on the part of claimant, and, consequently,
we deny and make no award to the petitioner on his claim.
Claim disallowed.
146 RkPOWiS
STATE COURT OF CLAIMS [W. VA.
Opinion issued July 26, 1968
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY
vs.
DEPARTMENT OF PUBLIC
INSTITUTIONS
(Claim No. D-55)
Robert J. Loud erback, Esq. for the Claimant.
Thomas P. O’Brien, Assistant Attorney General, for the State. Ducker,
Judge:
The Claimant, by virtue of subrogation to the rights of Carroll E. Walters, who
was the owner of the automobile for which damages are claimed, alleges that on
April 2, 1967, in Moundsyule, West Virginia, Arthur Franklin Carver escaped
from confinement in the State penitentiary and went to the residence of Carroll
E. Walters and took and drove said Walters’ 1967 Chevrolet automobile about
half a city block and collided with a 1961 Chrysler automobile driven by one
James C. Meeks, causing damage to the Walters’ automobile in the sum of
$1,002.24
The main facts which are undisputed are subs Lantially to tne following effect.
Carver was serving an indeterminate sentence in the State prison, and in having
a good prison record was near release from the prison, and has since been
released, but that at the time of this incident Carver was serving as a
“trusty” and was assigned work at the chicken farm of the prison on an eight
hour shift from eleven o’clock the night of April 1, 1967, until seven ocIock
the next morning. In some way Carver obtained liquor and becoming “drunk”, left
the chicken farm and proceeded into Moundsville to the Walters’ residence and
there took the Waiters’ automobile which had the car keys in it and drove it
away and caused it to collide with the Meek car.
The evidence further shows how the chicken farm was operated by inmates who
were used also in connection with other operations and the extent of their
custody and conilne
W. VA.]
REPORTS STATE COURT OF CLAIMS 147
ment within the prison wails. The State Director of Correction who was in
charge of all persons on probation and parole testified at length as to the
practice ol the prison officials in such matters and particularly as to the
inmate Carver who caused the damage in this case. He said this inmate and many
others were given work at the farm, chicken nouse, piggery and coal mine of the
prison, and that there are approximately 165 men who work outside of the walls
of the penitentiary each day. He also said that Carver had served a number of
years in prison and was well-adjusted to such life; that Carver was not
rebellious and that Carver’s record was clean and that he was really a very
good risk. This witness also said that a “trusty” such as Carver was, was
checked on three times every twelve hours and by a lieutenant of the guards,
and that apparently Carver left the chicken house about 12:45 a.m. the morning
of April 2d, and went immediately to the Walter’s home and after the accident
was returned to the prison about three o’clock in the morning in a very
intoxicated condition. The Director said that under the circumstances,
particularly his near release time, he did not consider Carver an escapee but
only an inmate who somehow on that one specific occasion got drunk and while
drunk walked away.
It is considered good policy on the part of government institutions where
persons are incarcerated because of criminal acts and convictions to include
programs of rehabilitation and correction to place inmates on some type of or
degree of probation and parole in order to give them some occupation or duties
to perform, even where such duties must be performed outside the prison walls,
and wnere a prisoner’s record is clean and contains no act which would provide
reason to believe he could not be trusted. From these facts we cannot conclude
there was any negligence on the part of the prison officials in making Carver a
trusty and allowing him to do the work assigned to him. If the claim herein
were allowed, the wholesome practice of parole would be materially destroyed.
Nor do we think that the fact that Carver was able to obtain liquor and become
intoxicated, when it was not shown that he had previously done so, is
sufficient to attribute negligence on the part of the prison officials when the
prisoner had a clean record amid was near release at the time of such
happening. It is not shown
148 REPORTS
STATE COURT OF CLAIMS [W.VA.
how he obtained the liquor or its kind or quality, or that there was negligence
on the part of the prison officials in such regard, nor was said alleged
failure a proximate cause of the acts of Carver.
Our Courts have held that while the warden of the State Penitentiary is the
lawful custodian of the convicts there confined, he is not personally liable
for a tort committed by a convict unless he directly participated in its
commission by a breach of duty. Kuhns v. Fair, 124 W. Va. 761. Where, however, gross acts of
negligence on the part of a sheriff and his deputies which operated to weaken
or injure a prisoner physically, and possibly to kill, such officer or officers
are liable. Smith v. Slack, 125 W. Va. 812. And the negligent act of a sheriff or
jailer is not liable where such act is not the proximate cause of the injuries,
as such act must be the natural and probable consequence of the negligence. State ex ret Poulos v. Fidelity and Casualty Co., (W. Va.) 263 Fed. Supp. 88.
While in this claim the State is the defendant, this Court cannot waive the
Constitutional immunity where there could be no liability against an individual
or a corporation if the latter were defendant.
Considering the facts and the applicable law, we are of the opinion that there
was no negligence on the part of the officers of the State and that there is no
moral obligation on the part of State to pay the claim for damages in this
case, and, consequently, we deny and make no award to the claimant in this case.
Claim Disallowed.
W. VA.]
REPORTS STATE COURT OF CLAIMS 149
Opinion issued September 9, 1968
CHARLES HENRY CEPHAS
vs.
DEPARTMENT OF PUBLIC INSTITUTIONS
(No. D-57)
Robert G. Wolpert, Esq. for the Claimant.
Thomas P. O’Brien, Assistant Attorney General, for the State. Ducker.
Judge:
Claimant, Charles Henry Cephas, alleges that on December 4, 1941, he entered
the West Virginia State Penitentiary at Moundsville to serve a life sentence
for a felony conviction and that on October 14, 1966 he was released on parole
from his imprisonment; that on December 5, 1966 he was admitted to Mountain
State Hospital in Charleston for treatment of leg injuries diagnosed as
thrombo-phlebitis where operations were performed and that he is still under
the care of the doctor who so performed such operations; that said ailment has
existed since he was first incarcerated in the penitentiary, and that the
penitentiary officials wilfully and negligently failed and refused to provide
claimant with adequate and proper medical treatment, resulting in the permanent
disability of claimant and his inability to engage in any gainful employment,
thus damaging him in the sum of $50,000.00, $1,000.00 of which is for hospital
and medical expense.
The evidence consists of claimant’s own testimony, the penitentiary hospital
records from 1947 to date of claimant’s release, and the testimony of the
former warden of the penitentiary. No evidence of a medical nature other than
the said penitentiary hospital records. The State penitentiary hospital records
from 1941 to 1947 as to claimant were unobtainable, as it appears that such
records could not be found. The claimant testified that in the latter part of
1940 while he was working on the W.P.A. as a driller near Beckley a drill bit
broke and “tore up” his legs, and that his legs were still swollen when he was
taken to the penitentiary in December, 1941, being placed in the hospital there
for three months. He admitted he
150 REPORTS STATE
COURT OF CLAIMS [W. VA.
received much treatment in the penitentiary from time to tune and the records
confirm that fact, but he says it was not adequate or pioper.
The sole question at issue is wnether the medical treatment afforded or not
afforded ciairnant was the cause of claimant’s suffering and conaition. As to
this the proof lies only in the claimant’s own tesmimony. The cause originated
it seems from the accident which occurred before his incarceration. Although
about seven years of hospital records have been unobtainable, it hardly seems
reasonable to assume they would show anything helpful to the claimant in
proving his claim anymore than do the records which were obtained and
introduced in evidence, The doctors who were employed by the State to render
medical service to the inmates, including claimant, are not living, but the
evidence shows they were respectable and qualified, and with no evidence to the
effect that their treatment of the claimant was not proper or negligent it is
difficult to believe otherwise, especially when there is no convincing proof of
complaints during such time. The records are full of ins cances of the
application of hot compresses and ultraviolet rays and zinc oxide ointment
treatment to claimant’s leg, penicillin shots, boric acm and warm and hot
saline soakings of his leg. The records disclose many occasions on which
claimant was a patient in the hospital for ailments other than those affecting
his legs. On February 2, 1959 a report shows that claimant had “vericose veins
on both legs for which he has been treaced or quite some time, that this
condition persists due to the fact that Cephas has not tried to do what has
been prescrioed for him.” Except to say he has not been cured, claimant offered
no proof to the effect that he would now be cm ed excepc for the negligence or
improper treatment by the medical staff at the penitentiary hospital. We cannot
assume it to be a fact that claimant could have been cured of his leg ailment.
We are not unmindful of the difficulty of patients to procure evidence to
support claims of malpractice against physicians, but much more than has been
offered in testimony in this regard is necessary to convince this Court that
there has been any mistreatment or maltreatment of the claimant by the
penitentiary hospital staff, The claimant is certainly no expert capable of
W. VA.]
REPORTS_STATE COURT OF CLAIMS 151
testifying as to what was or was not the proper treatment in his case, even
though he may still be afflicted with the disease. It seems, too, that during
the approximately twenty-five years of his incarceration he would have some
independent proof as to negligent or improper treatment. Furthermore, it was
his duty, if he was to wait this long before asserting his claim, to have made
some reasonable efforL to get assistance from someone in or out of the
penitentiary to substantiate the allegations which he now makes. Although this
case is primarily based upon the theory of being a continuing trespass, the
long delay and the death of the doctors capable of testifying have destroyed much
of the credibility which would otherwise apply to claimant’s testimony.
Preponderance of evidence means sufficient evidence of such quality as to
prevail, which in this case is to overcome the facts appearing to the contrary
in the hospital records. Howsoever much the claimant believes the hospital
staff was negligent or wilful in their treatment of him, such belief, even if
accompanied by pain, does not constitute competent evidence to establish the
allegations of the claim. We are of the opinion that claimant has not borne the
burden of proving his case by a preponderance of the evidence, and conclude
that he is not entitled to any compensation in this matter, and, accordingly,
we do not make any award to him herein.
Claim Disallowed.
152 REPORTS STATE
COURT OF CLAIMS W. VA.
Opinion issued September 9, 1968
C. L. DOTSON
vs.
STATE ROAD COMMISSION
STATE OF WEST VIRGINIA
(No. D-62)
No one appeared for the Claimant.
Thomas P. O’Brien, Assistant Attorney General, and Robert R.
Harpolci, Jr. for the State Road Commission.
Ducker, Judge:
Claimant alleges that on December 8, 1967 at about 11:00 o’clock a.m. he was
driving a 1967, 3/4 ton pickup truck on State Route 49, seven miles south of
Matewan in Mingo County, West Virginia, when he was required by a State Road
Commission flagman to stop his truck to allow the State Road Commission
employees to put off a blasting shot, and that as a result of such shot a rock
landed on the hood of claimant’s truck and damaged the same to the extent of
$23.00.
The facts and the extent of the damages as alleged by claimant are stipulated
as true by the Attorney General, and, consequently, we are of the opinion that
it is a claim which in good conscience should be paid, and therefore we hereby
award to the claimant, C. L. Dotson, the sum of $23.00.
Award of $23.00.
W. VA.]
REPORTS STATE COURT OF CLAIMS 153
Opinion issued September 9, 1968
EMANUEL FEDERICO
vs.
BURL A. SAWYERS, AS STATE ROAD COMMISSIONER
OF THE STATE OF WEST VIRGINIA
(No. C-20)
Frank Pietranton, Esq. for the Claimant.
Thomas P. O’Brien, Assistant Attorney General, and Robert R. Harpold, Jr., Esq. for the State.
Ducker, Judge:
The petitioner, Emanuel Federico, claims damages in the sum of $8,914.50 for
hospital, medical, truck repair expenses, cargo loss, personal pain and
suffering past and future, and permanent disfigurement, all as the result of
his 1966 GMC van truck overturning on U.S. Route 22, Cove Hill Road, just east
of a place known as Country Cottage, Weirton, West Virginia, on November 9,
1966 at or about 2:00 p.m.
The evidence shows that the claimant conducted a grocery business in
Steubenville, Ohio, and after making purchases of produce and grocery items at
Pittsburgh was returning to Steubenville with a load of such items, and that
while so driving his truck down grade on said Cove Hill Road the wheels of the
truck dropped off the northern paved portion of the highway into a depression
or gully resulting, when the driver attempted to get back on the pavement, in the
truck turning over, spilling the cargo of the truck and injuring the claimant
driver. The depression or gully in the very wide berm of the road was variably
estimated to be four to eight inches in depth, from six to eight inches in
width, and the paved part of the road was thirty-six feet consisting of three
lanes, one westerly, r downhill, and two easterly, or uphill. The road was dry
and the claimant was driving between twenty and twenty-five miles per hour, and
when claimant’s truck wheels went into the depression or gully on driver’s
right side of the road claimant, according to his testimony, “veered to the
left and found myself rolling on my lane,” turning the truck over completely.
154 REPORTS STATE COURT
OF CLAIMS [W. VA.
It appears that there were curve signs on
the road indicating such at the place of the accident. Claimant also testified
that he made one or two trips a week over this road. There is some conflict in
the evidence as to the color of the material in the berm of the road at the place
of accident, witnesses for the petitioner stating it ws practically the same as
the blacktop paved portion of the road, while the State’s witness stated it was
much darker, which latter testimony is corroborated by pictures of the road
taken subsequently in January 1967, which pictures this Court considers as
quite corroborative in that there is little likelihood that any substantial
change in the color of the road and the berm could have occurred.
There is no contradiction as to the loss and damages suffered by the claimant.
The State defends solely on the ground that it is not liable because the facts
show that the proximate cause of the accident was the claimant’s negligence,
and if such negligence was not the sole cause then it was a contributing cause
sufficient to find the driver guilty of contributory negligence. In other
words, the accident would not have happened if the claimant had driven his six
foot wide truck over the road which he well knew, and which was twelve feet
wide in his lane at the place of the accident, in a careful and prudent manner.
It seems apparent from the facts as hereinabove recited that claimant was
negligent in allowing the wheels of his truck to go off the paved portion of
the road into the gully edge of the wide berm when there was ample room in the
paved portion of the road, especially when it does not appear that other
vehicles were passing in either direction on the thirty-six foot wide road.
While the berm of the road might have been left in a condition not good for
travel or even emergency necessities, we can hardly say that the accident was
sufficiently attributable to such condition. Claimant feeling the jerk in his
front wheels attempted to turn them back to the left to get back on the road,
but with the front wheels in the gully he was unable to negotiate the left
turn. The berm of a road is not a travel section and the maintenance of it is
primarily for the protection of the paved portion of a road and not for travel.
So in the light of the facts as shown by the evidence, we are of the opinion to
and so find that the claimant is not entitled
W. VA.]
REPORTS STATE_COURT OF CLAIMS 155
to recover from the State the damages he claims, and, ac cordingly, we make no
award to him in this case.
Claim
Disallowed.
Opinion issued September 9. 1968
J.
E. GREENE
vs.
STATE
ROAD COMMISSION
and
DEPARTMENT OF FINANCE AND ADMINISTRATION
(No. D-32)
Chad W. Ketchum, Esq., for the Claimant
Thomas P. O’Brien, Assistant Attorney General, and Robert R. Harpold, Jr., Esq.,
for the State.
Ducker, Judge:
The claimant, J. E. Greene, alleges that he is entitled to receive $6,317.90
from the State Road Commission and/or the Department of Finance and
Administration as payment for labor and materials furnished by him in the construction
of a masonry and structural steel equiornent storage shed near Hart’s Run in
Greenbrier County, West Virginia, in March and April, 1965.
The evidence is that, by a stipulation between the Road Commission and Greene
and otherwise, it was agreed that there were five bids on the project and that
upon the withdrawal by the low bidder of the low bid in the sum of $12,969.50.
Greene, whose bid in the sum of $13,748.61 was next lowest, was recommended by
the Director of the Maintenance Division of the State Road Commission for an
award of the contract, That Greene was told the State was very much in need of
the building and that the Road Commission wouJd like for him to start and
complete it as soon as possible. There does not appear to have been any executed
written contract for the project, but Greene, relying upon the directions-
given him, proceeded to order the materials which he needed and upon receiving
them
156 REPORTS
STATE COURT OF CLAIMS [W. VA.
proceeded with the construction work to the extent of about two-thirds
completion when he was advised about April 17, 1965 that the contract had not
been approved. Various checks and receipts were filed by Greene to show the
extent of the cost incurred by him, as to which there is no denial by the respondents.
The Road Commission thereafter took over the premises as partially constructed
and completed the project, using all the materials at the location of the
project placed there by Greene and the partly constructed building.
While this Court looks with disfavor on state contracts which are not
authorized and executed according to statutory and budget requirements, we do
not approve of unfair and unjust enrichment by the State in dealings which its
officers have made in taking property and labor of others in projects such as
this in which the State has so benefited. There appears no question as to the
State receiving the benefit of all the labor and materials furnished by
claimant and there is no dispute as to cost or value of the various items. In good
conscience the claimant should be reimbursed and paid for all such labor and
material, exclusive of an interest charge of $53.33 paid by clainiant and less
a salvage of doors, one-half of $512.25 or $256.12, and we are of the opinion
to, and do so find and award to the claimaiit the sum of $6,008.45.
Claim awarded in amount of $6,008.45.
Opinion issued September 9, 1968
MR. AND MRS. T. E. HARRISON
vs.
STATE ROAD COMMISSION
(No. D-22)
Claimants appearing in person.
Thomas P. O’Brien, Assistant Attorney General, and Robert R. Harpold, Jr., Esq. for the State.
Ducker, Judge:
Claimants, T. E. Harrison and his wife as joint owners of property occupied by
them as their home and situate between
W. VA.]
REPORTS STATE COURT OF CLAIMS 157
Interstate Road 64 and U. S. Route 35
and known as 103 Fair- land Drive, Nitro, West Virginia, claim damages in the
amount of $439.00 done to their heating furnace as a result of water drainage
from the Interstate 64 into the creek adjoining their property, causing the
creek to overflow onto the claimants’ property into the furnace beneath the
floor of the house. They contend a thirty-inch pipe or culvert under Interstate
64 drains into an eighteen inch pipe which latter pipe is unable to carry off
the drainage water as it flows into an open ditch, and which open ditch leads
into a creek adjoining claimants’ property; and that the flow of the water is
then directed to a 48 inch culvert under Fairland Drive just westerly of
claimants’ house. That 48 inch culvert, claimants say, is not sufficient to
carry the water off but forces the water to back up over their lot. Although
the damage claimed is not disputed, it is not entirely well proven, but that is
immaterial in view of the decision herein made.
It appears that claimants purchased their property in February, 1966 but they
had little knowledge of the drainage of the area prior to their purchase,
except some unclear hearsay evidence to support the contention they here make.
Quite some testimony relates to the 48” culvert under Fairland Drive which they
say may cause the water to back up and overflow claimants’ property and we are
of the opinion from such evidence that the backed-up water may seriously affect
the claimants’ adjoining land. It is ciear from the evidence that the
construction of the culvert was done by the real estate developers or other
owners or parties without any participation therein by the State and that the
State neither had nor has any obligation in the construction or maintenance of
the same. It further appears that the creek or creek bed adjoining claimants’
property receives the drainagc of several creeks or smaller streams and has
done so for years, and also that there has been considerable residential
development and a large super market erected in the neighborhood, all of which
has affected the natural drainage of the land in the area.
The State Road Commission’s witnesses introduced as exhibits diagrams, pictures
and contour maps showing the relative locations of creeks, drains, streets and
road routes near or adjacent to claimants’ home, and they testified that the
natural
158 REPORTS
STATE COURT OF CLAIMS [W. VA.
drainage
of the area had not been affected by the
construction of Interstate 64 or by the water from the drain pipe thereunder,
and that the damage to claimants’ pronerty, if any. was caused by the other
circumstances shown in the evidence.
The real question before this Court. therefore, is whether the State by its
Road Commission has caused the damage claimed in this matter. We are of the
opinion that claimants have not shown in any degree of certainty or accurocy
that the drainage of the area has been changed or if there has been a change in
drainage that such change caused the damage to the furnace and property of the
claimants. Consequently, we are of the opinion to, and do not make any award to
the claimants herein.
Claim disallowed.
Opinioi issued September 9, 1968
JAMES L. MATHENY
vs.
STATE ROAD COMMISSION
STATE OF WEST VIRGINIA
(Claim No.
D-49)
Claimant apnearing in person.
Thomas P. O’Brien, Assistant Attorney General, and Robert R. Harpold, Jr., for the State Road Cor.mission
Ducker. Judge:
Claimant alleges damages in the sum of $265.00 on account of damages to his
1960 Falcon automobile which was struck by a State Road Commission l92 Ford
truck on November 24, 1967, at or near the junction of Leon Baden State
Secondary Road 23 and U. S. Route 35 in Mason County. Claimant’s car was parked
along Route 35 and some ten feet or more from the paved road when the brakes on
the State Road Commission truck, driven by Arew McCallister, an employee of the
Commission, down the
hill of the Leon Baden Route 23 into the area near the
intersection of Route 35, failed and collided with
W. VA.)
REPORTS STATE COURT OF CLAIMS 159
claimant’s car. The other facts are the same as set forth in this Court’s opinion in Claim
No. D-47, Lois and Dayton Shinn
v. State Road Commission, decided contemporaneously herewith, and the damages
herein having been the result of the same causes, we deem it unnecessary to
further repeat them in this opinion.
The claimant’s car had a salvage value of $25.00 and the estimates of the cost
of repairs exceeded the used car book value of $265 00. and
claimant is willing to accept the $265.00, less $25.00. or $240.00.
As the facts are undisputed and there is a clear case of liability on the part
of the Road Commission and that the claimant is entitled to recover, we are of the
opinion to and do hereby award to James L. Matheny the sum of $240.00.
Award of $240.00.
Opi,iiou issued September 9, 1968
GUY E. McCOY
vs.
SECRETARY OF STATE
and STATE AUDITOR
(No. D-54)
Claimant appearing in person
Thomas P. O’Brien. Assistant Attorney General, for the State. Ducker,
Judge:
Claimant, Guy E. McCoy, alleges that he should be refunded by the Auditor and
the Secretary of State of the State of West Virginia the sum of $225, which sum
is composed of (1) $60 he paid for a corporation charter obtained on June 18,
1965 and charter taxes through June 30, 1966, (2) $50 he paid on September 23,
1965 when he requested approval by the State Auditor as the Commissioner of
Securities of a stock offering, (3) $110 for registration to sell stock, and
(4) $5 fee paid the Secretary of State to dissolve the corporation. The claim is based upon
160 REPORTS
STATE COURT OF CLAIMS [W. VA.
the refusal by the Director of Securities to issue claimant a permit or license
to sell the shares of capital stock of the corporation which he organized and
dissolved. Liability on the claim was totally denied by the respondents on the
basis that the fees paid were not refundable under the statute and were not
collected upon the contingency of the claimant’s success in obtaining a permit
to sell the shares of the capital stock of the corporation or upon any other
contingency.
The facts are entirely clear that claimant organized and obtained a charter for
a corporation whose purpose was to engage in the manufacture of glass and glass
products, commencing business with $5,000.00 deposited in the Harrison County
Bank; that he had an approved bank loan of $16,000 and an approved U.S.
Government ARA loan of $40,000, making a total of $61,000. Claimant desired to
sell shares of the corporation in the amount of $50,000 and so applied to the
Director of Securities for such permission and authority. The Securities
Division advised claimant that among other requirements he would have to have
$5,000 rriore capital in order to meet the State’s requirements in that regard.
Claimant contends that with the loans he had obtained he had sufficient funds
for operation of the business without the $5,000 additional capital required by
the State. Claimant never obtained the $5,000 additional capital, nor does it
appear that he or his corporation ever met a number of other requirements
specified by the Securities Division, and consequently claimant was not given
permission to sell $50,000 worth of the company’s stock, and thereafter the corporation
was dissolved.
It is to be noted first that Section 6, Article 1, Chapter 32 of the Code of
West Virginia specifically provides with reference to fees paid in the matter
of an application for permission to sell corporate securities that “when an
application is denied, the Commissioner shall retain the registration fee
deposited.” Even if this were not the express statutory law in that regard, we
are of the opinion that it would take such a law to allow a refund to be
authorized.
Claimant obtained the charter for his corporation by paying the statutory fee
therefor. There was no agreement on the part of the State as to what he should
do with it or as to whether it was going to continue to exist or be dissolved.
The State
W. VA.]
REPORTS STATE COURT OF CLAIMS 161
could not function on any such contingency, and it is inconceivable that one
should think so, and, of course, there can be no basis for refunding any such
costs to anyone on that account. We regret that anyone has such a conception
that either the law or justice dictates any such liability. The work in issuing
the charter is done when issued and the consequences to incorporators is an
entirely different matter.
As to application for permission to sell shares of stock of the corporation in
the amount of $50,000, there appears no conflict in the evidence. Claimant did
not meet the requirements of the Director of Securities, who concluded that in
order for the shares to be proper for sale to the public or to the persons
interested there need be an additional $5,000 added to its capital structure.
Loans in the total sum of $56,000 would constitute only liabilities in that
amount, leaving only the $5,000 original capital as an equity of the business.
This fact on its face without the other requirements specified would seem to
justify the Commissioner in his refusal to issue the permit or authorization
requested. The claimant does not show sufficient cause for this Court to think
he has been unfairly treated. This Court is not to be substituted for courts
which under the statute have jurisdiction to hear an appeal from, and if
necessary overrule, a decision of the Commissioner.
From the facts and according to the law, we are of the opinion that claimant is
not entitled to recover on his claim, and, accordingly, we deny and make no
award to him in the matter.
Claim disallowed.
162 REPORTS
STATE COURT OF CLAIMS [W.YA,
Opinion issued September 9, 1968
LOIS
AND DAYTON SHINN
vs.
STATE ROAD COMMISSION
STATE OF WEST VIRGINIA
(Claim No. D-47)
Claimant appearing in person.
Thomas B. Yosc, Assistant Attorney General, and Thomas P. O’Brien, Assistant Attorney General for the State Road Commission.
Ducker, Judge:
The claimants, Lois Shinn and Dayton Shinn, allege damages in the sum of 1,4OO
on account of their 1963 Fiat automobile having been struck by a State Road
Commission 1962 Ford truck on November 24, 1967 at or near the junction of Leon
Baden State Secondary Road 23 and U.S. Route 35 in Mason County. The claimant’s
car, owned entirely by Lois Shinn, was parked along Route 35 and some seven
feet or more from the paved road when the brakes on the State Road Coiiimission
truck, driven by Anctrew McCallister, an employee of the Commission, south on
Route 23 into the intersection area of Route 35, failed and struck the Shinn
car as so parked. The evidence is undisputed, and the fact that the accident
was caused by the failure of the brakes on the State truck and the inability of
the driver to stop the truck as it proceeded down the hill of the Leon Baden
State Road No, 23 and into Route 35 where claimants and other cars were parked
along side of Route 35, the State Road Commission driver having been forced to
have his truck eitner hit ciaimants car or go over the steep bank and down on
the railroad tracks and possibly into the river below the road, convinces us
that the State was entirely responsible for the damage ãone. An examination of
the brakes by the State garage mechanics corroborated the fact that the brakes
on the truck were defective and broken.
The claimant obtained estimates of the cost of repair of his car in the sum of
$1,118.16 and $1,185.37 respectively, from two
W. VA.] REPORTS
STATE COURT OP
CLAIMS 163
gai ages in the area, but claimant admitted that she was willing to settle for
the used car book value of $460, less a salvage value of $25.00.
As the facts are undenied and there is a clear case of liability on the part of
the Road Commission, and that the claim is just, we are of the opinion to and
do hereby award to Lois Shinn, the sum of $435.00.
Award of $435.00.
Opinion issued October 17, 1968
PETER CHAPMAN
vs.
STATE ROAD COMMISSION
(No.
D-78)
Thomas
P. O’Brien, Assistant Attorney General, and Robert R. Harpold, Jr., Esq. for the State.
DucKer, Judge:
The claimant, Peter Chapman, of Lenore, West Virginia, claims damages against
the State Road Commission in the sum of $73.24 occasioned by a rock fall from a
mountain upon claimant s automobile, a 1965 Voikswagon, in which claimant was
traveling north on State Route 65 about nine miles from Belco, Mingo County,
West Virginia, on October 5, 1967. The rock fell upon clairnant2s automobile as
a result of Aid to Families with Dependent Children of the Unemployed workers
clearing the mountain side and there being no flagman or sign on the road to
warn traffic of any damage. The facts are
stipulated by the respondent as true
and the amount of the costs of repair as reasonable. We are of the opinion that
the claimant has a just claim, and accordingly we award him the sum of $73.24.
Award of $73.24.
164 REPORTS
STATE COURT OF CLAIMS [W.VA.
Opinion issued October 17, 1968
COLUMBIA RIBBON & CARBON
MANUFACTURING COMPANY, INC.
vs.
DEPARTMENT OF FINANCE &
ADMINISTRATION
(No. D-82)
Thomas P. O’Brien, Assistant Attorney General, for the State. Ducker,
Judge:
Claimant, Columbia Ribbon & Carbon Manufacturing Company, Inc., of Glen Cove, New
York, sold and delivered to the Department of Finance & Administration in
June, 1964 office supplies evidenced by invoices totaling $94.94. The facts are
stipulated by the respondent as true and the values fair, and the claim
submitted on the pleadings and stipulation. As it appears that the only reason
the claim was not paid was because the respondent was not invoiced until after
the close of the fiscal year and so could not be paid, and as the respondent
received and had the use of the personal property so sold and delivered to it,
we are of the opinion to and do award the claimant the sum of $94.94.
Award of $94.94.
Opinion issued October 17, 1968
MARY ANN DeBOLT
vs.
DEPARTMENT OF MENTAL HEALTH
(No. D-85)
Jack W. DeBolt, for claimant.
Thomas P. O’Brien, Jr., Assistant Attorney General, for respondent.
Jones, Judge:
The claimant, Mary Ann DeBolt, alleges in her petition that she was employed by
the Department of Mental Health of the
W. VA.]
REPORTS STATE COURT OF CLAIMS 165
State of West Virginia in its summer work program at Cohn Anderson Center, for
the months of July and August, 1966; that she worked during the two months, and
was paid for the month of July but not for the month of August; and that she is
entitled to the sum of $400.00 for services performed and for which she
received no compensation.
As required by Code 14-2-16 (3), the Attorney General of West Virginia
investigated this claim and undertook negotiations with counsel for the
claimant. As a result, it was determined from the records of the Department of
Mental Health that there is justly due and owing to the claimant the sum of
$177.42 for services rendered by her under contract with the Department, and
the claimant has agreed to accept said sum in such settlement of her claim.
At the hearing of this matter, the foregoing facts were stipulated to be true,
and it thus appearing that this is a claim which in equity and good conscience
should be paid, an award is hereby made to the claimant, Mary Ann DeBolt, in
the sum of $177.42.
Opinion issued October 17, 1968
HAYNES CONSTRUCTION COMPANY
and SAVAGE CONSTRUCTION COMPANY
vs.
STATE ROAD COMMISSION
(No. C-16)
Clarence E. Martin, Jr., for claimant.
Theodore L. Shreve, Robert R.
Harpold, Jr., and Thomas P. O’Brien, Jr., for respondent.
Jones, Judge:
A contract was awarded to the claimant by the State Road Commission on April
28, 1960, for paving a segment of Interstate 77 in Jackson County, construction
to begin within ten calendar days after the award and to be completed within
145 working days. The claimant immediately moved equipment and personnel onto
the job, but was unable to start its paving operations. According to the
claimant, the delay was entirely
166 REPOWrSSiAT
COURT OF CLAIMS fW. VA.
tne rauh of the State Road Commission ana other contractors employed oy the
State Road Commission who failed to prepare tne suagiade requirea for
the commencement of paving operatiosms, There appears to be no question that
there was several inontns deray ana tne claimant was not permitted to withdraw
its equipment, out the Staie Road Commission contends that mucn of the deiay
was due to tne taiture of ‘me claimant to meet specihcations for crushed rock
to be usea on the sub-grade. It appears n’om the evidence that the
specifications were impo sibie of fulfillment, and after considerable delay,
they were lelaxea and alterea. The total amount of the claim is $283,- 825.56,
of which $264,933.00 is for delay, $9,752.16 for an increase in the puce of
cement, $1,100.00 for additional stockpile rental, $2,000.30 for an office
trailer, $,104.40 for stabilizhig and reconditioning base materials, and tor
otner materials rurnisned at tne request of the State Road Commrssion at a cost
of $1,468.42. While Savage Construction company was a nominal c1airnant n this
case, there was no showing that it had any inteest in the recovery sougnt.
At the completion of the claimant s evidence, me parties requested a recess for
tne purpose of attempting to resolve the con2hcts as to tne tmme, quantities
anu costs involved in the claim. Thereafter, counsel for tne parties annuunceu
that they had arrived at a settlement of mew differences, and t was st:palated
that the sum of $144,349.53 was justly due ana owing to the claimant, being the
sum of $134,081.70 for delay occasmoned oy the respondent ana not the tault of
the claimant, $9,717.33 br tne increased expenaitute for cement resulting from
tne delay, and $550.00 additional suocicpne rental. All other aarnrs were
witnarawn or abandoned. The Attorney G-eneial of West virgmia concurred in the
stipumarion.
Upon considetatmon of the petitmon, the evidence aduuced, tne strpuation anti statements
of counser, tne Court is of the opinion mat the crainmanc has presented a valid
ciann against the State of West Virgmnia witnxn me jurisdiction of this Court,
whicn in equity ana good conscience should be paid, and, accordingly, n is the
judgment of the Court that the claimant, Raynes Construction Company, should
iecover, and it is hereby awaruea tne sum of $144,349.53.
W. VA.] REPORTS STATE COURT OF CLAIMS 167
Opinion zssueã Qccober 17, 1968
OTIS ELEVATOR COMPANY
DEPARTMENT OF FINANCE AND ADMINISTRATION
(No, Drn61)
Thomas P. O’Brien, Jr., Assistant Attorney General, for respoent.
Jones, Judge:
This claim is for $426.61 for services performed by me clai main in the
maintenance of the State Capitol elevators in tile year 1966 under a contract
between tne claimant and the De paitment of Finance and Administration of the
State of West Virginia.
The respondent filed its answer in writing, admitting that the claimant
performed the services as alleged, that the sum claimed is due and owing, and
that the only reason that said ainoimt was never paid was that invoices for
payment were not submitted until aiter the end of the year 1966, when ap
propriaced funds for such purpose had expired.
The claim was submitted on the record, which clearly shows that the claim is
jus, and in eqaity and good conscience should be paid. Accoidingly, we award
the claimant, Otis Elevator Company, the sum of 426.61.
Opinion ‘Lssuea Ocior 17, 1968
UNITED AIR LINES, INC.
vs.
DEPARTMENT OF FINANCE AND ADMINISTRATION
(No.
D.61)
Thomas P. O’Brien, Jr., Assistant Attorney General, for respondent.
Jones, Judge:
This is a claim for air transportation iricurrea by Tmman F. Gu e, Cur us
Wilson and Silas F. Starry, all employ es of the
168 REPORTS
STATE COURT OF CLAIMS [W. VA.
Department of Finance and Administration of the State of West Virginia, during
the years 1964 and 1965. There was some delay in presenting invoices for the
purchase of tickets and the claimant was advised that the balance owing could
not be paid for the reason that appropriated funds had expired. The claimant
was further advised by the Department to file its claim in this Court.
In its answer to the petition, the Department of Finance and Administration
admits that the three employees took the trips as alleged on claimant’s airline
and that the trips were on official business for the State of West Virginia.
The answer further admits that the sum of $512.91 is due and owing to the
claimant. When called for hearing, the claim was submitted for decision on the
pleadings.
Wherefore, the Court is of opinion that this claim is just, and in equity and
good conscience should be paid. Accordingly, we award the claimant, United Air
Lines, Inc., the sum of
$512.91.
Opinion issued November 8, 1968
BACHE & CO., INCORPORATED
vs.
STATE TAX COMMISSIONER
(No. D-63)
Lee 0. Hill, for claimant.
Thomas P. O’Brien, Jr., Assistant Attorney General, for respondent.
Jones, Judge:
The claimant, Bache & Co., Incorporated, filed its claim in this Court on
February 29, 1968, for Business and Occupation taxes erroneously paid to the
State Tax Commissioner of West Virginia for fiscal years ending January 31,
1957 through 1964. Such overpayments were made on the mistaken belief that
interest income from loans made to West Virginia customers was subject to tax,
whereas such income was not taxable. The
W. VA.]
REPORTS STATE COURT OF CLAIMS 169
cumulative error was discovered by a Field Auditor for the State Tax
Commissioner during the course of an audit for the years 1963 to 1967: Pursuant
to the results of said audit, taxes in the total amount of $5,295.46 for the
fiscal years ending in 1965, 1966 and 1967 were refunded to the claimant.
Overpayments in the years 1963 and 1964 were calculated by the Field Auditor as
$1,674.74 and $2,108.73, respectively, a total of $3,783.47, and this amount
was not refunded for the reason that the recovery thereof was barred by the
statute of limitations. The State Tax Commissioner did not have records for
prior years but, based on its own records, the claimant claims an additional
$5,008.56 for overpayments of tax for the years 1957 to 1962, the recovery of
which is also barred by the statute of limitations. The claimant contends that
the State has been unjustly enriched, and has a moral obligation to refund the
over- payments in the total amount of $8,792.03.
Chapter 11, Article 1, Section 2a of the Code of West Virginia was amended in
1967, but the statute applicable to the years in question provides as follows:
“On and after the effective date of this section [June 8, 1951], any taxpayer
claiming to be aggrieved through being required to pay any tax into the
treasury of this State, may within three years from the date of such payment,
and not after, file with the official or department through which the tax was
paid, a petition in writing to have refunded to him any such tax, or any part
thereof, the payment whereof is claimed by him to have been required
unlawfully; and if, on such petition, and the proofs filed in support thereof, the
official collecting the same shall be of the opinion that the payment of the
tax collected, or any part thereof was improperly required, he shall refund the
same to the taxpayer***”.
The Act creating the Court of Claims (Chapter 14, Article 2 of the Code of West
Virginia) provides in Section 21 thereof the following:
“The Court shall not take jurisdiction of any claim, whether accruing before or
after the effective date of this article, unless notice of such claim be filed
with the clerk within such period of limitation as would be applicable under
article two, chapter fifty-five of the code of West Virginia, one thousand nine
hundred thirtyone, as amended, if the claim were against a private
170
REPORTS STATE COURT OF CLAIMS [W. VA.
person, firm or coroortion and the
constitutional immimity of the state from suit were not involved;**,
While the foregoing provision refers only to periods of limitation applicable
under Article 2, Chapter 55 of the Code of West Virginia. the Court perceives
the intention of the Legislature to be that claims against the State should not
be allowed in any case where the Legislature has decreed that such claims shall
be barred after a specified time. To allow this claim would constitute an
invasion of the province of the Legislature, and would, in effect. set aside
the legislative will. The Court is of opinion that eouitv and good conscience
do not require the relief prayed for in this case and, accordingly, the claim
is disallowed.
Opinion issued November 8 1968
MARGARET MEADOWS BLONDHEIM
and RONDAL K. BLONDHEIM
vs.
DEPARTMENT OF PUBLIC INSTITUTIONS
(No. D-37)
John J. Curtis, Jr., for claimants.
Thomas
P. O’Brien, Jr., Assistant Attorney General, for respondent.
Jones, Judge:
The complaint in this case was filed on November 17, 1967, for damages alleged
to have resulted from negligent and unauthorized surgery performed at Fairrnont
Emergency Hospital on September 6, 1946, by a doctor employed by the State-
operated institution.
The claimant, Margaret Meadows Blondheim, testified that she was admitted to
the Fairmont Emergency Hospital on September 13, 1946 and was examined by Dr.
C. M, Ramage, Superintendent, who diagnosed her illness as cholecystitis; that
she consented to an operation to remove her gallbladder and to have her tubes
tied; that she underwent the operation on September 16, 1946, and thereafter
was told by Dr. Ramage
W, V,] REPORTS STATE COiRT OF
that “your
gallbladder was not functioning, it was had,
ad we
removed it”: that she. her husband and three
children moved from Marion County, West Virginia. to Akron, Ohio n April, 1954;
that after she went to Ohio, a doctor examined her and told her she had “a
coronary heart” and he put her on nitroglycerin: that she went to about five
doctors
during the period of about twenty years, and none of them said she had
gallbladder trouble: that in April, 1966. she became very ill and went to Dr.
Robert E. Mosteller) an osteopathic physician and surgeon; that Dr. Mosteller
told her that her gallbladder was “acting up”. whereupon she informed the
doctor that her gallbladder had been removed in 1946; that Dr. Mesteiler put
her in the hospital for x-rays, and it was determined that her gallbladder was
still in place; that since discovering that she still has a gallbladder, she
has become more nervous, is subject to belching and abdominal pain, cannot
sleep and has lost her appetite; and that she has undergone and will continue
to undergo great pain and suffering.
The testimony of the claimant, Rondal K. Blondheim, corroborated substantial
portions of his wife’s testimony.
Dr. Mosteller’s deposition was taken and filed in evidence, and his testimony
is substantially as follows: The claimant visited his office for the first time
on April 8, 1966, complaining of headaches and chest pain. After examination,
his diagnosis was “Anemia, menopausal syndrome, exogenous obesity and coronary
insufficiency.” As to medical history: “She stated that she had had hypotension
for 10 years. She stated that she had a cholecystectomy in 1946, Tubes were
tied same year. Bowel surgery in 1960 for adhesions and appendix. Gastric
surgery for peptic ulcer 1961. She stated she had heart trouble in 1963, has
taken nitroglycerin since. Also, that two cervical cysts were excised.” He
prescribed nitroglycerin. X-rays were taken in March and November, 1967, all
showing the existence of the gallbladder. “There appears to be a normal
functioning gallbladder”, but the doctor “suspects” that the claimant has
biliary dyskinesia which “possibly” could require gallbladder surgery. He could
not say whether the claimant’s gallbladder would have to be removed in the
future, or whether her life expectancy may be shortened. He further stated that
there is “a degree of likelihood that Mrs. Blondheim will have difficulty
172 REPORTS STATE COURT OF CLAIMS [W. VA.
with her gallbladder in the future”, and that such difficulty may bring about
the necessity for surgery. The doctor testified that, in his opinion, the
knowledge that she has a gallbladder has aggravated the claimant’s nervous
condition.
The hospital record which was introduced into evidence is made up of four
pages. The Personal History page for “Margaret Meadows” has the name “Dr.
Ramage” in the upper right corner, but on the signature line are the initials
“LRC” which are the initials of Dr. L. R. Conley whose name appears on the
operating record as assistant surgeon. The Physical Examination sheet shows
“Examined by LRC.” The Operative Record consisting of two pages shows the
surgeon as Dr. C. M. Ramage, the assistant surgeon, L. R. Conley, and the
operation to be “Cholecystectomy, Bilateral Tubal ligation,” and again this
report is signed “LRC”. This record goes into considerable detail in describing
the operation. As an example, we quote: “Upon entering the abdomen, examining
hand was inserted into the gall bladder region. Gall Bladder was found to
contain adhesions around the cystic duct and the wall was thickened and showed
signs of inflammation of the gall bladder.”
Dr. Ramage has been dead for many years, and the other principals present at
the operation, except the claimant, are dead or have no recollection of the
case. While it appears only to be a coincidence, sometime after the operation
the claimants changed their last name from Meadows to Blondheim.
This is a most extraordinary case, and it appears that the complete and true
facts can never be reconstructed. It strains credu1iIy to think that Dr. Ramage
or Dr. Conley wrote a gallbladder operative record out of the whole cloth—that
it could have been deliberately falsified. If the recitals were true, then they
had to apply to another patient which would mean that there was a mix-up in the
hospital records or in the identity of patients, and some twenty-two years
later, we are inclined to accept that view.
It is apparent that the claimant is not in good health and does suffer from her
several ailments. The Court is satisfied that the claimant’s gallbladder was
not removed in 1946 and that it was then a healthy organ and should not have
been removed. The Court believes that part of the operation—the tying of her
W.VA.] REPORTS STATE
COURT OF CLAIMS 173
tubes—was useful, and that the claimant many years ago recovered from the
operation without any ill effects. The Court does not believe that the recent
discovery that she has a gallbladder, which had stood her in good stead for
over twenty-one years and which, according to the evidence, is not likely to
cause serious difficulty in the future, should cause the claimant any more
distress than she already had at the time of such discovery; and the medical
testimony is not sufficient to support the subjective symptoms and complaints.
There is little that is clear in this case, and all of the damages sought to be
proved are highly speculative; and having weighed all of the evidence and all
reasonable inferences derived therefrom, the Court is of opinion that the
claimants have not sustained the burden of proof necessary to invoke the
conscience of the State of West Virginia, and, therefore, this claim is
disallowed.
Opinion issued November 8, 1968
THE CHESAPEAKE & OHIO RAILWAY
COMPANY
vs.
STATE ROAD COMMISSION
(No. D-86)
Thomas P. O’Brien, Jr., Assistant Attorney General, and Robert R.
Harpold, Jr., Esq. for the State.
Ducker, Judge:
The claimant, The Chesapeake & Ohio Railway Company, claims damages in the
sum of $212.01 against the State Road Commission, which damages resulted from
the overturning and damaging of coal car No. 89076, owned by the said claimant,
when blasting was done by employees of the State Road Commission on July 10,
1967 near Kelly, Logan County, West Virginia. The damages claimed are for the
cost of the repairs only with no charge for uprighting, re-railing and moving
the damaged car to the point of repair.
The above facts pertaining to thj claim are stipulated by counsel for the
claimant and by the Attorney General as being
74 REPORTS STATE
COURT OF CLAIMS [W. VA.
pcurate,
nd the cost of repair is agreed to as
being fair, and thir is no dispute or apparent reason to
contradict the facts as so stipulated, and
the Court being, therefore. of the opinion that the claim is just. does hereby
award to the claimant the sum of
212 01
Award of $212.01.
Opinion issued Novmber 8. 1968
CITY OF MORGANTOWN
‘is.
BOARD OF GOVERNORS OF
WEST VIRGINIA UNIVERSITY
(No. D-46)
Mike Magro, Jr., Esq., City Attorney, for the Claimant.
Thomas P. O’Brien, Assistant Attorney General, and Robert
R. Harpold. Jr., Es. for the State.
Ducker, Judge:
The claimant, The City of Morgantown, West Virginia, claims $40,886.22 from the
Board of Governors of West Virginia University as allegedly an agency of the
State of West Virginia on account of unpaid fire protection service fees for
the fiscal year 1966-1967, one-half of which was due November 1, 1966 and one-
half May 1, 1967. The unpaid charges represented amounts which the Council of
the City of Morgantown, as previously constituted, voted to credit to the
University on total charges of $52,945.11 and $52,943.11 respectively for the
two halves of such charges or assessments. The present council alleges that the
former council had no authority to authorize such credits and claims that the
amount of such êredits is still due. The facts are stipulated by the parties as
true; the validity of the claim is solely one of law.
The position is taken by the claimant that if the respondent could be given
credit on its fire protection service fee as was done in this instance, it
would amount to a discrimination in favor of the University and that such
action would result in
W. VA.]
REPORTS_STATE COURT OF CLAIMS 175
the necessity to grant exceptions to literary, scientific, religious and
charitable oronertv ac well as other State and Federal property, all of which are not exempt under the terms of the or
dinance of the City of Morgantown. The authority of the City to adopt the
ordinance relating to the fire service fee is contained in Chapter 8, Article
4, Section 20 of the Code of West Virginia, and no such exemptions are
specified in the Statute, ad no authority is cited uoholding such an exemption.
The action of the City Council as formerly constituted could, in view of the
uniformity reauired under Section 9 of Article 10 of the Constitution possibly
be ouestioned as not meeting the uniformity.
As our decision herein must be determined on the jurisdictional ground
hereinafter specified, this Court should not, and does not, decide the question
of the validity or invalidity of the action of the Morgantown City Council or any
consequent alleged liability on the part of the Board of Governors of West
Virginia for the claim herein made.
As first shown .
this claim is one against the Board of
Governors of West Virginia University as an “agency” of the State of West
Virginia within the meaning of the statute conferring jurisdiction on this
Court. Counsel have not argued the question whether the University Board is or
is not such an agency as gives this Court jurisdiction but the Court considers
that question as controlling.
Chapter 14, Article 2, Section 3 of
the Code of West Virginia, provides that:
“‘State agency’ means a state department board, commission. institution, or
other administrative agency of state government: provided, that a ‘state
agency’ shall not be considered to include county courts, county boards of
education, municipalities, or any other political or local subdivision of the
state regardless of any state aid that might be provided.”
And in Section 13 of the same Article and Chapter the jurisdiction of the Court
includes,
“1. Claims and demands, liquidated and unliquidated. ex contractu and ex
delicto, against the state or any of its agencies, which the state as a
sovereign commonwealth should in equity and good conscience discharge and pay.”
176 REPORTS STATE COURT OF CLAIMS W. VA.
The Board of Governors of West
Virginia University is according to Chapter 18, Article 11, Section 1 of the
Code of West Virginia, “a corporation, and as such may contract and be
contracted with, sue and be sued, plead and be impleaded with, and have and use
a common seal,” and according to Section la of that same Article and Chapter
the control of the financial, business and all other affairs of the University,
including the title to all property, were transferred from the State Board of
Control to the Board of Governors of the University.
The Claimant here evidently assumes that the constitutional immunity contained
in Article VI, Section 35 of the Constitution of West Virginia to the effect
that the State cannot be made a party defendant in any of the courts of this
state prevents legal proceedings in the regular courts and that, as a
consequence, this Court has jurisdiction of this matter. That assumption or
conclusion would be correct if the Board of Governors of West Virginia
University is truly an agent within the meaning of the above-quoted statutes
defining the jurisdiction of this Court.
The State has yielded its sovereignty in many areas where it has established
corporate municipalities, corporate organizations and other institutions which
have the right to enact laws, levy taxes and fees and otherwise act
independently of state control. County boards of education and municipalities
are expressly excluded as a state agency under Chapter 14, Article 2, Section 3
above quoted. So there remains the question as to whether the term “state
agency” includes a separate corporate entity such as West Virginia University.
West Virginia University is not similar to the Road Con-imission or the Welfare
Department where all governmental power remains in the State. Incorporated
municipalities and county courts have independent jurisdiction in many respects
and are not dependent on the Legislature for their financial support. The Board
of Governors of West Virginia is dependent upon the State for its support but it
does make its own contracts, controls all its own dispersal of funds and
enforces its own rules except criminal laws. The fact that it obtains much
financial support from the State does not negate its authority under its
charter. The State cannot make the University’s contracts, cannot sue for it
and cannot control the University’s affairs, except to give
W. VA.)
REPORTS STATE COURT OF CLAIMS 177
or not give it funds for its operation. Like cities and counties, a plea of
immunity from liability might be available to it when damages are inflicted on
others in cases where there has been an exercise of a governmental as
distinguished from a proprietary function. Such right to defend and escape
liability by invoking the doctrine of immunity because of such exercise by a
city or county or by the University does not of itself make such city, county
or University an agency of the State. If that were the case, every legal action
against any city or other state incorporated body in which there is sustained a
governmental function plea of immunity from liability would come within the
jurisdiction of this court under the agency theory. We cannot conclude that
there was any such intention on the part of the Legislature in its enactment of
the jurisdictional provisions of this Court, for otherwise there would be no
limitation on the powers of this Court, and the number of such cases would be
unlimited.
Furthermore, it is not, we think, unreasonable to conclude that if the State
has yielded its sovereignty to cities, universities and other public
corporations, and such corporations can sue and be sued, it is no longer a
matter for the State to waive its constitutional immunity from liability on
account of the acts or failures of such corporations, and therefore it is only
a question of the conscience of the city or other public corporation and not of
the State, and it is only as to claims against the State that are to be
determined by this Court.
The wording of the definition of “state agency” to the effect that such an agency
means a state department, board, commission, or other administrative agency of the state government, clearly limits such an agency to one which is in the
true sense an officer or servant of its master, the State, and not one which
acts as an independent principal. While it is true there is an express
exception of cases of municipalities, county boards of education and county
courts from the jurisdiction of this Court, it seems to us that the expression
of those organizations as exempt is not the exclusion from the exemption of
other organizations which are self-operating. In other words, a corporate
organization such as The Board of Governors of West Virginia University which
functions entirely separately and independently of any control by the State, is
not truly an “admini
178 REPORTS
STATE COURT OF CLAIMS [W. VA.
strauie” state agency, for whose liabilities this Court should determine
whether in equity and gooa conscience the State shoula pay.
The decision of the upreine Court of West Virginia in the case of Hope Naurai Gas Company v. West Virginia Turnpike Commission, 143 W. Va. 913, 105 SE2d 630, is a case
invoivng the principles here. Thete it was held that the Turnpike Com mission,
which had been given various powers including the right to sue and be sued and
the right of condernnaton, was a creature of the State and not suen an agent of
the State, e,efl though declared in the Act to be an agent of the State, as was
entitled to constitutional immunity from the payment of daLn ages for a tort committed
by it in the construction of the turn- pike.
There are many commissions and autnorities, for example the airport autnorines,
which are separate creatures of the state, with grants of power Irom the state,
which sureiy are not ‘agents” of the state, It these authorities or commissions
do riot have the beneht of the constitutional immunity of the stare, we do not
see where this Court has authority to hold that the State has a moral
obligation to pay for misdeeds or contracts based upon the acts and obligations
of such commissions oi’ puolic cot porations, and providing for payments
therefor wnolly trorn the State funds and not from the funds of such
independent corporate entity.
For the reasons herein epiesed, we are of
the opinion to aiid do hereby
disallow and dismiss the claim made herein,
Claim Disallowed and Dismissed.
W. VA.]
REPORTS STATE COURT OF CLAIMS
Opinion is.ued November 8, 1968
CHARLES
J. KUCERA and
JOSEPHINE ANN KUCERA, Claimants
“S.
SlATE ROAD COMMISSION, Respondent
(No. D-38)
No appearance for Claimants
Thu
mus P. O’Brien, Assistant Attorney
General, and Rovert
R. Eiwxpoid, Jr., Esq., for the Respondent
Petreprns, Judge:
Ciairnans have
flied a claim for replacing evoiiymous
vines and
a Holly tree which were wrongfully
cut down and remo qed by empioyees of the State Road Commission on
the private properLy owned by the Ciaimans located in Weirton, Hancock Coony, West
Virginia. It has been stipulated between cothsel for the
Claimants and counsel for the State Road Cotmiixssiun thai the toiai amount of damages suffered by the Claimants is $75.00, based on an estimate flied with the Stipulation. The State has made a tnorough inves dgation into the
facts and ag ecs thai the
Staie Road Commission wrongfully came opon ti’e prope’iy of the Claimants
and cut down the evonymous ground
covering and the Holly tree.
It is,
thet efore, the opinion of this Court that the Claimains be, and they are hereby awarded the sum of $75.00.
Claim allowed in the amount of $15.00.
180 - REPORTS STATE COURT OF CLAIMS [W.VA.
Opinion issued November 8, 1968
STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY, Claimant
vs.
STATE ROAD COMMISSION, Respondent
(No. D-80)
No appearance for Claimant.
Thomas P. O’Brien, Assistant Attorney General, and Robert R. Harpold, Jr., Esq., for the Respondent.
Petroplus, Judge:
This claim is presented for determination on a Stipulation of Facts submitted
by the Attorney General’s Office.
The Stipulation states that Bobby Joe Honaker was driving on State Route No. 80
on February 26, 1968, at 2:30 P.M., at which time and place a State Road crew
was cutting and chipping stones on the side of mountain along State Route No.
80. As Mr. Honaker passed the work area a rock came down the side of the hill
and hit the left rear of his car causing damage in the amount of $79.26. The
Respondent further stipulated that the amount of damages as alleged is
reasonable.
Neither the Claimant’s Petition nor the Stipulation sets forth any facts to
establish liability for damages to the automobile of Mr. Honaker. The claim is
presented by the Insurance Claimant by way of subrogation. The case of Adkins, et al v.
Sims, 130 W. Va. 646, establishes as a principle of law in West
Virginia that there is no moral obligation on the part of the State to
compensate a person who is injured on a public highway of the State. The State
is not an insurer of the safety of the roads and highways.
Inasmuch as the Stipulation fails to disclose any facts other than a falling
rock in a work area, it is the opinion of the Court that public funds should
not be paid to reimburse the Claimant unless it is clearly established that
there is a moral obligation on the part of the State to pay compensation. No
facts are presented that the injury sustained was the result of
W.VA.] REPORTS
STATE COURT OF CLAIMS 181
the negligence of the State Road Commission or any of its agents and emp]oyes.
No fault is attributed to any employee working on the road, on the right-of-way
or on abutting property privately owned. The State does not, and cannot, assure
a traveler a safe journey in a mountainous country, where many roads are
narrow, with steep grades and sharp curves. An unexplained falling of a rock down
a hillside does not satisfy the requirement of proof that the rock fell because
of the failure of the road crew to exercise reasonable care in its work area,
or as the result of conditions which the State Road Commission was instrumental
in creating or maintaining. A negligent or wrongful act should be alleged.
The opinion expressed herein necessarily calls for a disallowance of the claim
on the basis of the Stipulation filed. If an award would be made in this case,
a precedent would be created to require compensation to every person injured on
the highways of the State, and thereby impose an absolute liability on the
State to maintain its roads in a safe condition.
Claim disallowed.
Opinion issued November 8, 1968
T&L—WHEELING PLUMBING
& INDUSTRIAL SUPPLY CO., Claimant
vs.
DEPARTMENT OF PUBLIC INSTITUTIONS,
STATE OF WEST VIRGINIA, Respondent
(No. D-70)
D. Paul Camilletti, Esq., for the Claimant.
Thomas P. O’Brien, Assistant Attorney General, for the Respondent.
Petroplus, Judge:
Claimant furnished building materials and supplies to the Department of Public
Institutions of the State of West Virginia for use in the construction of a new
wall at the State Penitentiary for the period beginning July 27, 1964, and
ending October 19, 1966. For unknown reasons, the vouchers, copies of
182 REPORTS
STATE COURT OF CLAIMS [W.
VA.
which were attached to the claim as an Exhibit, were either lost 01 misaid by Administrative Personnel of Respondent and
were not pi ocessed for payment. A Stipulation signed by counsel for the C]ainianr and the Respondent states that the supplies
and matci ials in question were ordered by an authorized representative of the
Respondent and were used in the construction of the new wall at the West
Virginia Penitentiary. It is acimitted by the Respondent that the amount of the
claim is true and correct and that the supplies and materials were actually
furnished in the amount claimed.
It appearing that there remains due and unpaid on said account the sum of
$2275.22, and that the Respondent has no objeution to the payment of said
claim, the Court is of the opinion that the Claimant is entitled to be
compensated, and an award is accordingly made to it in the amount of $2275.22.
Claim allowed in the amount of $2275.22.
Opinion issued November 11, 1968
JACK E. HAMMACK, Claimant
vs.
STATE ROAD COMMISSiON. Respondent
(No. D-83)
Claimant appearing in person.
Thomas P. O’Brien, Assistant Attorney General, and Robert R.
Ha’rpold, Jr., Esq., for the Respondent.
Petroplus, Judge:
Claimant, Jack E. Ilammack, the owner and occupant of a dwelling house situate
in Bomont, Clay County, West Virginia, on land abutting on Route 1, a secondary
road, claims damages in the amount of $957.00 for injuries sustained by his
house as the result of a flow of water over his property after a heavy rainfall
on March 12, 1968. A United States Weather Report shows a rainfall of 2.11
inches on that date for the area affected as compared with a total rainfall of
4.79 inches for the entire month of March.
W. VA.)
REPORTS STATE COURT OF CLAIMS 183
The ease presented invol\ es a factual issue, rather than any questions of law,
nameiy.-—was the omission of the State Road Commission to keep open and
functional an 18 inch culvert or drain under the road for the free passage of
surface water the proximate and direct cause of the property damage? The amount
of the damage is not in dispute.
The dwelling is located near the foot of a hill about 6 feet below the level of
a paved asphalt road, 14 feet in width, and faces the road with a front yard of
approximately 35 feet between the foundation wail and the road. The front
basement wall, alleged to have collapsed as the result of the water flow, is
constructed of cinder blocks arid is about 40 feet in length. The road which
passes the house has a downgrade of 4 to 6 percent.
Directly across from the claimant’s dwelling is another hillside. partly
cleared of vegetation, where a dirt driveway winds tip the hill leading to a
neighbor’s house on the hillside.
It is alleged that the State Road Commission negligently pernutted the 18 inch
drain located under the paved road about 180 feet up the hill from the house to
become clogged or stopped up with debris, thereby causing surface water to flow
over the top of the road and down the hill, and be cast over the berm, across
the front yard and against the front basement wall facing the road with
sufficient force to undermine the wall and cause a 20 foot portion thereof to
cave in. The claimant awoke when he heard the wall collapse at 3:30 A.M. of
that date, and upon inspecting his basement found it filled with mud and
debris. The other three walls of the basement were not damaged. A part of the
concrete walk in front of his home was also washed away, and a loamy soil seems
to have washad away and into his excavated basement. It is claimant’s
contention that if the drain of the State Road Commission had been open, it
would have carried the surface water, or as much of it as it could handle.
across the road and discharged it into a deep ditch on claimant’s property, and
eventually to a nearby creek. Instead of being ditched, the overflow traveled
down the road and claimant testified it made a right turn over the berm and was
cast directly in front of his house.
184 REPORTS
STATE COURT OF CLAIMS [W.VA
Photographs of the house and surrounding area, taken about a week later by a
Safety Supervisor of the State Road Commission, reveal no mud, debris or loamy
soil condition on the front lawn of the property, and further show two drainage
ditches inside the basement, constructed to carry away water seeping through
the walls in the basement. The drainage ditches were 4 inches by 12 inches and
indicate a chronic water seepage problem in the excavated basement of the
house. The evidence is not clear whether the house was provided with gutters
and down spouts.
Paul Parsons, who owned the house on the hillside directly across from the claimant,
privately installed a 7 inch pipe, 22 feet in length, to carry water away from
his property into a ditch on the other side of the road. The testimony
indicates this was also stopped up and covered by the dirt driveway leading to
the Parsons home. On the claimant’s property was another 6 inch metal pipe
which was covered up by a driveway leading to the garage in his basement. This
was also stopped up but may not have contributed significantly to the flooding
of the basement.
It appears that the State Road Commission neglected to keep its drain up the
road from the house open and unobstructed. Claimant purchased his property in
October, 1967, and had sufficient time to acquaint himself with the drainage
problems of the area. The location of the house well below the road level, the
partially denuded hillside across the road from his house, the clogged drain of
the State Road Commission which he admits inspecting before the damage
occurred, the open ditch on his land connecting to the drain of the State, the
seepage problem of his basement, all indicated the servitude to which his land
was subjected by natural drainage of surface waters. Yet he made no effort to
notify the State Road Commission maintenance crew of the stopped up drain, nor
did he take any precautions to protect his property from drainage coming down
the hillside directly opposite his property where a small and inadequate drain
had been installed by the private property owner. The real issue before the
Court, in our opinion, is not the contributory negligence of the claimant in
failing to take precautions to protect his property, but the issue of proximate
cause. Was the negligence of the State Road Commission a
W. VA.]
REPORTS STATE COURT OF CLAIMS 185
circumstance or the direct proximate
cause of the damage claimed in this case? In order to charge the Respondent
with liability for injury to his property by flooding, claimant must show that
such flooding was the direct and proximate result of the wrongful or negligent
act complained of. It has not been shown in this case with any degree of
certainty that the water overflowing from a stopped up drain 180 feet away from
the properly went down the road and then across the road, over the claimant’s
front yard, and was cast with force against his front basement wall, causing it
to buckle and cave in. It is more reasonable to assume that surface water from
the hill opposite his property and surrounding area had no course to follow
except to cross the road and pour into his basement, already weakened by a
prior seepage condition of long standing. We are of the opinion, after a
careful consideration of all the evidence, photographs, exhibits, and relative
location of the house with reference to stopped up drains, that claimant’s
damage is due to the natural drainage of the area and other intervening and
superseding causes and is not directly attributable to the neglect of the State
Road Commission in keeping its culvert open. Therefore, we are of the opinion
to, and do not make any award to the claimant herein.
Claim disallowed.
186
REPORTS STATE COURT OF CLAIMS [W VA.
Opinion issued December 13. 1968
HARRY GORDON JOHNSON and
RUTH MARGARET JOHNSON
vs.
STATE ROAD COMMISSION
(No. C-3)
GILBERT RAY LOVEJOY and
HEVALENE F. LOVEJOY
vs.
STATE ROAD COMMISSION
(No. C-4)
George W. Stokes,
for
claimants.
Thomas P. O’Brien. Jr., Assistant Attorney General, and Robert R. Harpold, Jr. for respondent.
Jones, Judge:
Except for the amount of damages sought, the facts surrounding the above styled
claims are the same, and, therefore, these claims were consolidated for hearing
and decision. In both cases, the claimants seek damages to their adjoining
residence properties allegedly caused by the negligent installation and
maintenance of a drain under Interstate Route No. 64 adjacent to the claimants’
properties near the City of Nitro, in Putnam County, resulting in the
collection of large quantities of water and the diversion of same upon and over
said properties. It is alleged that damages have continued intermittently from
early 1965 to the present time.
When the claims came on for hearing, the respondent’s counsel moved for the
dismissal of the Johnson claim (No. C-3) on the ground of res adjuclicata, contending that the issues in this claim were litigated
and resolved in a condemnation proceeding. This motion is of doubtful validity
and will not be considered for reasons hereinafter made apparent.
The respondent’s counsel further moved for the dismissal of both claims for
lack of jurisdiction. The Court took the motion
W.VA.] REPORTS
STATE COURT OF CLAIMS 187
under
consideration and, upon the request of the claimants and agreement of the
respondent, proceeded to hear testimony upon the merits of the claims.
In substance, the evidence adduced by the claimants shows that at times of
heavy rainfall, water from the highway is collected, drained through a pipe and
discharged upon and near the claimants’ properties and that as a result the
claimants have sustained and will continue to sustain damages. On the other
hand, the respondent contends that the subject properties lie in a natural
drainage area and denies responsibility for any damages.
The Act creating the Court of Claims. Code 14-2-14, provides as follows:
“The jurisdiction of the court shall not extend to any claim: ***5 With respect
to which a proceeding may be maintained against the state by or on behalf of
the claimant in the courts of the state.”
The question to be decided is whether these claims fall within the legislative
prohibition.
It is well established that the State Road Commission may be compelled by
mandamus to institute condemnation proceedings to determine damages to real
estate and compensate property owners. Such an action is not a suit against the
State in contravention of Article VI, Section 35, of the Constitution. Hardy v. Simpson, 118 W. Va. 440; Riggs v. State Road Commissioner, 120 W. Va. 298; State v. Graney, 143 W. Va. 643; State
ex ret. French v. Sawyers, 147
W. Va. 619; Smeltzer v. Sawyers, 149
W.
Va. 641. Syllabus 1 of State ex ret. Griggs v. Graney, 143
W.
Va. 610, states:
“If a highway construction or improvement results in probable damage to private
property without an actual taking thereof and the owners in good faith claim
damages, the State Road Commissioner has the statutory duty to institute
proceedings within a reason able time after completion of the work to ascertain
damages, if any, and, if he fails to do so, after reasonable time, mandamus
will lie to require the institution of such proceedings.”
In State ex ret. Pearl W. Lynch v.
State Road Commission, 151 W. Va. 858, the Court held that evidence given by
petitioner
188 REPORTS
STATE COURT OF CLAIMS [W. VA.
and corroborated by other witnesses to the effect that since construction of a
state highway adjacent to petitioner’s land, petitioner had been subjected to
heavier, more damaging and longer flooding was sufficient to entitle petitioner
to have eminent domain proceedings brought against her by the State Road
Commission for the purpose of determining whether she had suffered damages and
the amount thereof, if any. The Court said:
“The testimony and allegations of the parties in relation to the alleged damage
are in conflict. This is not unusual in our adversary system of justice. However,
as hereinbefore related, in a proceeding of this nature, we are not called upon
to determine whether or not the respondent has actually caused damage to the
petitioner’s property. It is sufficient if the petitioner has made a good faith
showing of probable damage.”
The claimants cQntend that their properties have been damaged and continue to
be damaged as a direct result of the construction and maintenance of the
respondents highway. Under the cases cited, a mere showing of probable damage
would require the award of a writ of mandamus, and the claimants, being
entitled to a full judicial hearing and determination of the question, would
have their day in Court. As mandamus proceedings may be maintained against the
State by these claimants, it is clear that this case comes within the
jurisdictional prohibition set out in Section 14, Article 2, Chapter 14 of the
Code of West Virginia, and accordingly, these claims are hereby dismissed.
W. VA.]
REPORTS STATE COURT OF CLAIMS 189
Opinion issued December 16, 1968
PAUL F. HARRIS and VIRGIE HARRIS, Claimants
vs.
STATE ROAD COMMISSION, Respondent
(No. D-76)
Claimants appearing in person
Thomas P. O’Brien, Assistant Attorney General, and Robert R. Harpolcl, Jr., Esq., for the Respondent.
Petroplus, Judge:
This claim was filed to recover damages for personal injuries sustained by
Virgie Harris, Claimant, and medical expenses incurred by her husband, Paul F.
Harris, also claimant, as the result of their automobile going over an
embankment on the east side of State Route 52, in Wayne County, while traveling
in a northerly direction toward Huntington, West Virginia. The negligence
charged to the State Road Commission is the failure to provide guard rails at
the point of the accident, it being contended that the presence of said guard
rails might have prevented the automobile from going over the embankment on the
right side of the road.
The husband testified that on June 1, 1967, he was driving a 1954 Model Dodge
Sedan, and his wife, was occupying the front seat as a passenger, when his car
stalled on the highway. Being unable to start the motor again, the car was
pushed by a passing motorist to the berm on the left side of the road in front
of a grocery store, entirely off the paved portion of the road which was level
and about 30 feet wide at that point. Mr. Harris further stated that he set his
emergency brake, that his brake light was flashing and that he got out on the
driver’s side leaving the car occupied by his wife and a dog that was also in
the car. He went into the grocery store to call a Service Station on the
telephone, and a mechanic later came who apparently started the motor and left
the scene. Shortly thereafter, the motor stopped again and Mr. Harris for a
second time got out of his car, raised the hood and was checking or tinkering
with the motor, when for an unexplained reason the motor sudden-
190 REPORTS STATE COURT OF CLAIMS [W. VA.
ly
started up again and the car took off in gear before he
could get back into the driver’s seat. The automobile was equipped with an
automatic transmission which had been placed in “neutral” position before the
car started to move. Mr. Harris was struck by the car and thrown to the
pavement after it began its movement. The car crossed the entire width of the
highway which was level, traveling about 60 feet, crossed the berm of
approximately six feet on the right side of the traveled portion of the highway
and rolled over a bank into a ditch 25 feet below the level of the highway. Mr.
Harris suffered a bone fracture and was hospitalized about 42 days as the
result of being struck by the moving car, and Mrs. Harris sustained serious
injuries, including a back injury and broken ribs. She was also hospitalized.
The medical bills are quite substantial, and the car was totally demolished.
The alleged negligence of the State Road Commission is the failure to provide
guard rails at the point of the accident which might have kept the car from
going down the steep bank. In response to questions by the Court, T’,’Ir, Harris
testified that he set his emergency brakes and turned off the ignition before
going into the store to call a mechanic, getting out on the driver’s side.
After the motor stopped a second time, he got out a second time and opened the
hood to see if there was a loose connection leaving his ignition key turned on.
The car was in a neutral gear and when he touched something the motor started.
He stated that he previously had been having trouble with his automatic
transmission before the accident, saying “if you didn’t hold that lever up it
would drop down into gear”. This in brief is the factual situation.
It becomes unnecessary in this opinion to apply or discuss questions of law involving the
contributory negligence of Mrs. Harris, if any, and the question of intervening
negligence on the part of the driver, or even the question of whether the
absence of a guard rail at a dangerous point on the highway was the proximate
cause of the injuries sustained. It appears that the law of this State has been
well settled on the question of whether the failure of the State Road
Commission to provide guard rails, place road markers or danger signals on
paved highways constitutes primary negligence.
W. VA.j REPORTS STATE COURT OF CLAIMS
191
The
case of Adlcins v. Sims, 130 W, Va. 645, decided in 1947, on undisputed facts, and on a determination of the
State Legislature declaring that a moral
obligation existed on the part of the State to respond in damages when a car
went over a precipitous bank killing its occupants, the State Road Commissioner
having failed to install and maintain guard rails, the Court in that case
clearly established a principle that the failure to provide guard rails by the
State Road Commission does not create a moral obligation on the part of the
State to compensate a person injured on the highway, allegedly resulting from
such failure. This ruling was made notwithstanding a distinct and express
legislative enactment stating there was such a moral obligation and
appropriating the funds to make compensation. The Opinion holds that the State
is not the insurer of the safety of the roads and highways. and that the
construction and maintenance of public highways is a governmental function and
the funds available for road improvements being necessarily limited, the State
Road Commissioner is not required by any Statute to construct guard rails at
dangerous points on the highway. This being the situation, every user of the
highway travels at his own risk. The State does not and cannot assure him a
safe journey. The failure of the State Road Commissioner to provide guard rails
did not constitute negligence of any character, and particularly did not create
a moral obligation on the part of the State to pay damages for injury or death,
assumed to have occurred through such failure, and as the proximate cause
thereof. In the very nature of things, and considering the financial
limitations placed upon the Road Commissioner, public funds entrusted for road
purposes must be expended in the discretion of the Road Commissioner, and at
what points guard rails should be provided was a matter of discretion for the
State Road Commissioner. The honest exercise of that discretion cannot be
negligence.
Here there was no fault with the traveled portion of the road according to the
testimony. If we should hold that an unattended automobile which had been
brought to a complete stop on the left side of the road, which for some
unexplained reason crosses the highway and goes over an embankment on the right
side creates a moral obligation to compensate the driver and injured occupant,
we would be creating a precedent that the State will be reQuired to compensate
every person in-
192 REPORTS
STATE COURT OF CLAIMS [W. VA
jured on the highways of the State, if the accident could have been prevented
by maintaining guard rails at the point of the accident. We would also be
rendering an opinion that the State has an obligation to maintain in absolutely
safe condition every mile of our highways, primary and secondary. This would provide
insurance underwritten by the State for every traveler and impose almost an
absolute liability on the State to maintain its highways in a safe condition.
There being no showing of primary negligence from the evidence, it becomes
unnecessary to consider the questions of proximate cause, contributory
negligence or whose negligence proximately contributed to the claimants’
injuries.
Although we are most sympathetic to the claimants for their misfortune and
consequent suffering and medical expenses, we are constrained for the foregoing
reasons to disallow the claim and accordingly dismiss this claim and make no
award.
Claim dismissed.
No award.
Opinion issued December 19, 1968
MR. AND MRS. JAMES P. LEWIS
vs.
DEPARTMENT OF PUBLIC INSTITUTIONS
(D-73)
Mrs. James P. Lewis appearing in person.
Thomas P. O’Brien, Assistant Attorney General, for the respondent.
Jones, Judge:
At about 7:30 to 8:00 o’clock on the morning of March 31, 1967, four convicts
assigned for work at Hopemont Sanitarium overpowered a guard and escaped. At
about 10:00 o’clock that morning, they entered the home of the claimants, Mr.
and Mrs. James P. Lewis, near Terra Alta, made Mr. Lewis and later Mrs. Lewis
and one of their sons-in-law their prisoners and
W.vAI REPORTS
STATE COURT OF CLAIMS 193
helped themselves to the Lewises’
clothing which they put on in place of their institutional uniforms. That
night, two daughters, another son-in-law, William L. Wilson, and a small child
went to the home and were also taken captive. Later that night, having stolen
several items of property in addition to the clothing, the convicts tied up all
of the family, except Wilson, whom they made their hostage and compelled to
drive them away in his car. They went to Clarksburg, where they drove around
for some time, and finally stole another car, leaving Wilson’s car near
Clarksburg, and forced him to accompany them in the stolen car. They drove to
St. Marys and across into Ohio and back to Williamstown, where they tied Wilson
up and left him along Route No. 21.
The question of negligence on the part of the respondent turns on the conduct
of the guard at the time of the escape. Hopemont has a maximum security section
where maximum security inmates with tuberculosis are housed and where
Moundsville Penitentiary prisoners are employed as orderlies. Charles Robert
Sarver, Director of Corrections at the time, testified that the only difference
between the security at Hope- mont and Moundsville is that there is no wall
around Hopemont. Two guards are on duty at all times, one inside the maximum
security section and one outside. On the day in question, the outside guard
unlocked the steel door between the prison section and the office at the
request of one of the convicts who wanted to get a haircut from a “trusty”
whose shop was in the office. No other guard was present. As the convict came
through the door, he struck the guard and as they scuffled, the guard’s gun
fell out of its holster onto the floor. With his gun out of reach, the guard
was no physical match for the prisoner. The prisoner took the guard’s gun and
keys and released the other three prisoners. Then they opened the gun closet
and took two more guns, stole the guard’s automobile and drove away. Three of
the four escapees were termed “dangerous”. Early in February, 1967, one of the
escapees had been sent back to Moundsville Penitentiary for attempting to
escape from Hopemont, but about a month later, he was returned to the
sanitarium.
There is a difference of opinion concerning “standard procedures” at the
institution. Director Sarver testified as follows:
194 REPORTS
STATE COURT OF CLAIMS [W. VA.
“Under the security rules or regulations in effect at the time, that door
should not have been opened with one guard there alone. One guard from inside
and one guard from outside should have been at the door when the door was
opened. The investigation did reveal that that was not dorìe in this situation,
that one guard alone opened the door thus allowing or enabling the men to
overpower him.” The guard testified that “there has never been two guards at
that door at no time the six years I’ve been up there and there’s never been no
rules or regulations set down to that effect.” The guard also testified that
the rule requiring two guards went into effect the day after the escape.
These being maximum security prisoners, known to be dangerous and under guard
in a place where maximum security conditions were supposed to be in effect, the
Court is of opinion that the security measi’res taken were not sufficient in
the circumstances. The Director of CorrecJons terrieci the action “negligent”,
and the “two guards” rule became standard procedure Lhe following day. The
claimants and other members of their family were badly mistreated, and they
sustained damages as a result of the negligence o eriployees of the respondent.
While the claimants’ petition recited damages in the total amount of Five
Hundred Dollars ($OO.OU). the damages were not itemized and the Court has had
some difficulty in making its o ii itemization from the testimony of the witnesses. There
is sufficient evidence to support the following: four shirts— $15.92; one
sweatshirt—4.49; one suit—70.00; one suit——35.O0; one transistor radio—40.00; one lady’s car coat—19.00; two pair of pants—20.O0: and one fiashlight-—2.99; a total of
One Hundred Seventy-seven Dollars and Thirty-five Cents ($177.35).
The son-in-law, William L. Wilson, was riot a petitioner, but he was made a
party to the proceeding by the Court to permit him to prove his separate damages
as follows: sweater—$9.00; wrist watch—i0.O0; and gasoline and other car
expenses—12: 00; a total of Thirty-one Dollars ($31.00). Several other items of
damage were mentioned in the testimony but they were so vague and speculative
in nature that the same cannot be allowed.
W. VA.]
REPORTS STATE COURT OF CLAIMS 195
It is the Court’s judgment that these are claims against the State of West
Virginia which in equity and good conscience should be paid, and, therefore,
the Court awards the claimants, Mr. and Mrs. James P. Lewis, the sum of One
Hundred Seventy- seven Dollars and Thirty-five Cents ($177.35), and the
claimant, William L. Wilson, the sum of Thirty-one Dollars ($31.00).
Opinion issued January 27, 1969
THE
BAKER & HICKEY COMPANY
vs.
THE STATE ROAD COMMISSION OF
THE STATE OF WEST VIRGINIA
(No.
0-95)
George S. Sharp, Kay, Casto & Chaney, for the Claimant.
Thomas P. O’Bri’en, Assistant Attorney General, and Theodore L. Shreve for the State Road Commission
Ducker, Judge:
The claimant, The Baker & Hickey Company, was awarded a contract with the
State Road Commission upon claimant’s low bid of S744,999.79 for the
construction of a bridge over Gimlet Hollow, Cabeil County, West Virginia.
designated as Project No. 1-64-1 (53) 4, Contract No. 2, Cabell County Bridge
No. 2227. Claimant claims herein damages totaling $35,435.74, alleging
it was unreasonably delayed by the State Road Commission and prevented from
performing the work under the contract. The claim is composed of two principal
parts, the first being alleged damages suffered directly by the claimant in the
sum of $18795.35, and the second being alleged damages suffered by claimant’s
subcontrtctor, The Vo4t and Conant Conipany, which was to erect the steel of
the bridge, in the sum of S16.6 iO.39. for which sum the claimant says it is
liable to the subcontractor and therefore the Road Commission is liable for
said sum to the claimant. These claims were first filed as two separate claims,
one by the claimant and the other by the subcontractor, but inasmuch as there
was no privity of contract between the subcontractor and the State, the
claimant consolidated the two claims into one claim in its name.
196 REPORTS
STATE COURT OF CLAIMS [W. VA.
The contract provided for a period of four hundred working days for the
completion of the contract. The work was begun on May 4, 1964, and was
completed on June 23,
1966. The four hundred working days
expired on May 25, 1966, but no default was claimed by the Road Commission
which had shut the work down on a stop order dated July 20, 1964 which remained
in effect until May 26, 1965, a period of approximately ten months, due to a
land or ground slippage on the west bank of Gimlet Hollow affecting No. 1
abuttment and No. 1 Pier. The cause of earth slippage was not known or at least
none of the witnesses seem to know. It was, after long delay, rectified by the
contractor of the work on the adjacent part of the project. The Road Commission
explained the de’ay on the basis that time was necessary to study the slide in
order to determine its cause before attempting to remedy the situation. The
claimant alleges that the ten month delay was unnecessary and that its damages
resulted from such delay, alleging that it could have finished the work under
the contract earlier and not had the additional costs of equipment costs,
rentals and labor.
The claimant maintains the position that the 400 day provision is one only to
penalize the contractor if the contractor does not finish the work as
specified. We cannot subscribe to that theory, as the Road Commission fixes
such time as the reasonable period within which the work should and must be
completed so that the whole project shall be available to the public. If the
contractor can complete his work sooner and profit thereby, he is privileged to
but not required to do so. As to things which occur such as the earth slide or
slippage in this case, the State has not warranted to the contractor that such
will not occur and the contractor must take such probabilities into his account,
except that he should not be charged with working days while such exist.
Section 1.8.4 of the Specifications-Roads and Bridges, of the State Road
Commission, which was made a part of the contract involved in this case,
provides as follows:
“The Engineer shall have authority to suspend the work, wholly or in part, for
such period or periods as he may deem necessary, due to unsuitable weather, or
other conditions considered un-favorable for suitable prosecution of the work,
or for such time as may be found necessary due to failure of the Contractor to
W._VA.) REPORTS
STATE COURT OF CLAIMS 197
carry out orders given or perform any or all provisions of the Contract. The
suspension shall not constitute grounds for claim for damages or extra
compensation by the Contractor. If it should become necessary to stop work for
an indefinite period the Contractor shall store all materials so that they will
not obstruct or impede the traveling public unnecessarily or became damaged. He
shall take all precautions necessary to prevent damage to, or deterioration of,
the work performed, provide suitable drainage of the roadway by opening
ditches, shoulders, drains, etc., and erect temporary structures where
necessary. The Contractor shall not suspend the work without proper authority.”
We find nothing in the evidence questioning the authority or the propriety of
the susoension of the work under this contract, except that the claimant says
that the period of the suspension was unreasonable and unjustified. How
unreasonable or unjustified is not clear, and it must be remembered that by far
the larger part of the period of suspension was during the winter months.
Claimant, while questioning the period of suspension, offered no clear proof
that the period of the suspension should have been shortened or that the cause
of the earth movement could have been earlier determined and corrected. Who can
say whether some earlier elimination of the earth slippage would have been
successful, and if not successful what other damage may have resulted. It was
within the province and duty of the Road Commission to decide such question and
to stop work under the contract until it was certain as to what steps should be
taken. It is indeed unfortunate when such things happen, but we don’t see where
the State has become a guarantor against such an occurrence. We do not wish to
absolve the Road Commission of any negligence, but delay alone as in this
instance does not prove negligence.
The claimant says that it was delayed approximately ten months in the
performance of the contract all on account of an unreasonable period of the
stop order. It does not attempt to show what would have been a reasonable
period under the circumstances. On the contrary, the State introduced evidence
which showed a considerable amount of work was done by the claimant prior to
winter and during the said ten month period. The claimant’s own total alleged
damages amount to $18,795.35
198 REPORTS STATE
COURT OF CLAIMS [W. VA.
which if we would consider on a
monthly basis would be $1,879.53 per month. As is hereafter shown, the steel
work for the bridge completion was delayed by the Road Commission for
approximately two months beyond the four hundred day working period by its
action in giving incorrect information for the delivery of the steel. Because
of such action, we are of the opinion that two months costs can be fairly
charged to the Road Commission, and we can conceive of no other equitable
manner to determine such damage than to allow for such two months of the
average monthly cost of $1,879.53, which amounts
to $3,759.06.
rfl.1e second part of this claim which relates to the delay in
the erection of the steel caused by the damaging act on the part of a Road
Commission official in designating the time when the steel could be erected
from Abutment No. 1 and on and to Pier No. 1. We are not satisfied from the
evidence that there is unquestionable liability on the part of the claimant to
the subcontractor, The Vogt & Conant Company, for any damages claimed by
the latter. No contract between such parties was offered in evidence and the
proof is that the subcontractor claimed it was billing the contractor for the
claim and the contractor admitted such liability for the purpose of this claim.
We have serious doubts as to whether this could bar the contractor from later
denying liability to the subcontractor. However, this Court does not wish to be
strictly technical on this point in view of the fact that some injustice has
been done by the act of the Road Commission in so specifically designating a
day when the steel work could be clone on Pier No. 1.
Early in January 1965 the Road Commission advised claimant that No. 1 Pier
would be released to claimant for work by March 1, but it was not so released
until May 26, 1965, a date approximately three months later. Relying upon such
specific information claimant had its subcontractor ship the steel which had
been on order for many months to the bridge location and upon finding the pier
not ready the subcontractor had to store the same, requiring an additional
handling of the steel and the cleaning thereof after storage as well as some
additional charges. The extra costs and expenses claimed in this connection
consist of (1) labor and overhead $4,406.26; (2) premium
W.VA.j REPORTS
STATE COURT OF CLAIMS 199
time $113.90; (3) idle equipment $7,347.10; (4) truck crane $1,700.00; (5) cost
of cleaning steel $574.18; (6) Business & Occupation Tax of $377.49; (7)
$201.23 extra zinc pouring costs; and (8) labor escalation costs, travel and
trucking charges $1,920.23, making a grand total of $16,640.39.
Then of the above items claimed as damages the question for this Court is which
of them in our opinion should be allowed. As to the zinc lead matter, we find
no justification for allowances as such claim is not sustained by the proof.
Nor are we satisfied about equipment rental or other claims based on idleness
or loss of opportunity to the claimant to otherwise use. The record is not
clear as to vvhat use might have been made of such equipment but for the delay,
although claimant says it was not practicable to move the equipment. We cannot
conclude that there was an obligation on the part of the Road Commission to
compensate for any such hazard, even though the delay may have been a material
factor in the matter. The contractor and subcontractor were required to abide
by the provisions of the hereinbefore quoted section 1.8.4 of the
specifications and delays reasonably justified are hazards assumed by
contractors, otherwise the provisions are practically meaningless. We do,
however, feel constrained to and do consider valid the extra labor and overhead
costs of $4,406.26, the premium time of $113.90, the cost of cleaning steel of
$574.18, the Business & Occupation Tax of $377.49 and the labor escalation
costs of $1,920.23, making a total of $7,392.06.
In view of all the facts and circumstances and an effort to find an equitable
basis to adjust the controversial claims herein, we are of the opinion that the
claimant should be awarded the sum of $3,759.06 for the loss incurred by it,
and the sum of $7,392.06 for the loss occasioned to claimant’s subcontractor,
The Vogt & Conant Company, making a total award for both claims of
$11,151.12, and we direct that payment be made to the contractor and
subcontractor in said respective amounts.
Award of $11,151.12.
200 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued January 27, 1969
CAVANAUGH LANDSCAPING COMPANY
V.
DEPARTMENT OF NATURAL RESOURCES
(No. D-77)
Edward H. Tiley, Hoyt N. Wheeler, Kay,
Casto and Chaney for
Claimant.
Thomas P. O’Brien, Jr., Assistant Attorney General, and Arden J. Curry, Special Assistant Attorney General, for Respondent.
Jones, Judge:
On October 26, 1965, the claimant, Cavanaugh Landscaping Company of Akron,
Ohio, entered into a written contract with the respondent, Department of
Natural Resources, to construct four golf courses at West Virginia State Parks,
two at Pipestem State Park, in Summers County, one at Twin Falls State Park, in
Wyoming County, and one at Canaan Valley State Park, in Tucker County, for the
contract sum of $710,000.00 One paragraph of the contract provides the
following: “The Contractor hereby agrees to commence work under this contract
on or before a date to be specified in a written ‘Notice to Proceed’ of the
owner and to fully complete the project by October 14, 1966, as stipulated
in the specifications. The Contractor further agrees to pay, as liquidated
damages, the sum of $1 00.00 for each successive calendar day thereafter as provided
in Paragraph 19 of the General Conditions.” The contract further provides that
no changes in the work shall be made without the written approval of the Owner,
charges or credits to be determined by specified methods, and the claimant was
emphatically warned that no additional costs could be paid for without a Change
Order. The State of West Virginia issued a Purchase Order dated October 30,
1965, acknowledging acceptance of the claimant’s proposal dated September 27,
1965 showing the deletion of several Alternates and a base contract price of
$710,000.00. The Notice to Proceed was given on January 28, 1966. Sundry change
orders increased the total contract price to $762,399.80, and extended the
contract time from October 15, 1966, to June 1, 1968.
W. VA.j
REPORTS STATE COURT OF CLAIMS 201
The claimant contends that it is entitled to damages under the well established
rule of law that a contractor is entitled to damages for delay caused by the
owner, and also for damages for extra work done. Items of this claim as
identified in the claimant’s petition are as follows: 2 (b) Delay in giving notice to
proceed, including $11,564.00 not alleged in the claimant’s petition but
permitted by the Court to be shown under an amendment of the pleadings at the
time of hearing, $53,172.20; 2 (c) Delay resulting from faulty design and
changes recommended by a “Citizens Committee” appointed by the governor,
$20,750.00; 2 (d) Delay of the Department in furnishing mowing equipment,
S42,715.00; 2 (e) Failure of the Department to furnish adequate water,
$1,155.00; 2 (f) Damage to sprinkler heads, $1,295.00: 2 (g) Failure of the
Department to provide adequate drainage, $16,430.00; 2 (h) Erroneous staking of
courses, $24,255.00; 2 (i) Damages caused by heavy rains and delay relating to
automatic water systems, $53,662.50; 2 (j)
Delay due to traffic over public roads
through two courses, $6,400.00; 2 (k) Delay caused by Farmer Mallow, who
refused to vacate condemned land at Canaan Valley and threatened harm to the
claimant’s officers and employees, $5,952.00; 2 (1) Failure of the Department
to provide an adequate water supply at the Pipestem Nine Hole Course,
$1,245.00; 2 (m) Delay in location of a practice fairway at Pipestem Nine Hole
Course, $1,720.00; and 2 (n) General delays causing injury to claimant’s
financial position and hindrance to its business as a going concern,
$350,000.00; a total of $578,751.70.
The Department of Natural Resources denies that it owes the claimant anything
and contends that any losses which the claimant may have sustained were due to
the claimant’s own fault.
The State had no right to delay the Notice to Proceed indefinitely, for
example, to the day before the completion date of the contract as suggested by
counsel for the claimant, and if the delay was unreasonable, claimant would
have been entitled to an extension of time. The claimant made much of its
concern about the $100.00 per day penalty after the completion date, but the
record does not disclose that it ever requested an extension, and, in fact, it
appears that the eventual change order extending the time was initiated by the
respondent. The clai
202 REPORTS
STATE COURT OF CLAIMS [W. VA.
mant was put on notice at the outset that the contract must be approved by the
Community Facilities Administration, a federal agency which was to furnish
matching funds for the project, and that there were other oreliminary matters
which had to be consummated before work could be started. The claimant was told
that if it performed any work prior to the Notice to Proceed, “It’s on your
own.” During the latter part of November and early December, 1965. the claimant
did send skeleton work forces to the several State Parks, being supervisory
personnel who had no other work to do and apparently were making preparations
for the following Spring. The severe Winter weather made work on the project
practically impossible. The The Community Facilities Administration approved
the project on January 12, 1966, whereupon the Attorney General’s approval was
obtained and other necessary requirements were completed. and the Notice to
Proceed was issued on January 28, 1966. Contrary to the claimant’s contentions,
it was able to submit a work schedule dated February 22. 1966 showing that all work would be completed within
the term of the contract. Under date of March 17. 1966 Daniel Cavanaugh,
President of the claimant company wrote to the associate Architect/Engineer,
Irving Bowman and Associates, in part as follows: “In answer to your letter of
March 11, 1966, we wish to advise you that there has been no construction
delays and we expect to finish on the specified date.” Cavanaugh testified that
this letter was written under coercion and fear of retaliation, but there is no
corroboration of such averment, and in another letter written by him to Irving
Bowman and Associates on May 10. 1966, he said: “We have had our normal share
of problems so far and we have not been too concerned, but if you are not going
to approve any more payments for Pipe Stem 18. we will have to stop all work
there and request additional money for hold up.” The claimant undoubtedly had
problems during the period involved in Item 2 (b), but all of them should have
been anticipated and were substantially “normal” problems as indicated by
Cavanaugh in his letter of May 10, 1966. The claimant accepted the Notice to
Proceed and undertook performance of the contract, without making any request
for additiot a1 compensation or a change order, We are of opinion
that there ws no unreasonable delay on the part of the respondent;
W. VA.]
REPORTS STATE COURT OF
CLAIMS 203
and the damages claimed for this
period in the total amount of $53,172.20 are clearly not supported by the
evidence.
The Citizens Committee appointed by the Governor began its investigation in the
latter part of December, 1965. They made several recommendations for changes in
design at Pipestem. Work was suspended at Pipestem by an order of the
Department from March 25, 1966 through May 2:3, 1966. According to the
claimant’s testimony, extra costs in the amount of $20,750.00, resulting from
design changes in pursuance of recommendations of the Citizens’ Committee,
occurred in the months of July, August, September and October, 1966. The
incongruity of the dates is not explained. By the letter of May 10, 1966,
heretofore referred to, the claimant complained that it had not been paid $20,000.00
for work performed at Pipestem during the work stoppage period, and warned that
if estimates were not paid, all work at Pipestem would have to stop and damages
would be requested. In less than two weeks from the date of that letter, the
order was given to resume work. Some of the recornn,ended changes in design
were made, but there is no clear showing that the claimant was damaged thereby.
There is testimony to the effect that additional work was done, including
additional grading, but no diary was kept, no payrolls specifically attributed
to extraS •vork, no measurements of dirt moved, and change orders were not
requested. This was the only suspension of work ever ordered by the Department
and it applied only to Pipestem, not to the other two State Parks. At least to
some extent it appears that the Citizens Committee was more help than hindrance
to the claimant, and the effort toward changing some of the design appears to
have been a cooperative one. The Court is of opinion that the evidence adduced on
behalf of the claimant is not sufficient to sustain the allegations of Item 2
(c).
Items 2 (h) and 2 (c) discussed above are typical of the remaining items of
this claim. Items 2 (d) ,
2 (i), 2 (j), 2
(k), 2 (m) and 2 (a) all involve alleged delay as the proximate cause of
increased costs. The evidence, and frequently the lack of it, indicates that
inclement weather and the claimant’s own failures substantially contributed to
the claimant’s discomfort, inconvenience and financial loss.
204 REPORTS
STATE COURT OF CLAIMS [W. VA.
The claimant suffered inconvenience and some delay due to the recalcitrance of
Farmer Mallow. However, the State had obtained the right of entry upon the
Mallow land, as required by the contract, and upon notice of Mallow’s threats
and interference, an attorney was promptly employed by the State, an injunction
was obtained in the Circuit Court of Tucker County, and the molestation ceased.
The contract provides that the Owner shall not be responsible for any delay in
furnishing the right of way, but in case such delay retards operations, the
Owner shall grant an extension of time. No extra compensation or extension of
time was then requested by the claimant.
Items 2 (e), 2 (f). 2 (g), 2 (h) and 2 (1) involve claims of additional work
and expense which, under the contract, could not he paid for without the prior
approval of the Department and a written change order. This work was done
without change orders, and without proof of extra work or demand for extra
compensation.
Item 2 (g) complains of the failure of the Department to furnish adequate
drainage. The contract did not require the State to provide drainage, but when
during the course of the work it became apparent that certain drainage was
necessary, a change order was requested and provision for drainage costing
$27,399.80 was granted.
The fact that the claimant was unable to obtain copper wire at the time it was
needed for the installation of the automatic draining system at Twin Falls and
the resultant damage in the claimed amount of $12,000.00 cannot be attributed
to any fault of the Department of Natural Resources. This alternate was clearly
a part of the base contract and the responsibility for having to dig the ditch
twice was a combination of a scarcity of copper wire, weather and bad judgment.
The claimant did no more than it was required to do under the eontract.
Damages to the claimant’s business and the loss of future profits claimed in
Item 2 (n) are too remote and speculative to deserve serious consideration by the
Court.
Obviously, this was not a happy or profitable experience for the claimant. The
Court recognizes that the claimant sustained losses, some due to its own fault
such as having to dig a ditch twice at an additional cost of $42,000.00, some
as the result of
W. VA.]
REPORTS STATE COURT OF CLAIMS 205
bad weather and perhaps some losses which may have been contributed to by the
State, but not a single such item is examined, evaluated, described and
explained so that the Court can say that for this period and for this cost of
labor and equipment the claimant has been damaged in an amount certain by
reason of delay or other act or omission of the State.
The Court is of opinion that the claimant has not proved its case by a
preponderance of the evidence, and, accordingly, this claim is disallowed.
Opinion issued January 27, 1969
CHARLESTON CONSTRUCTION, INC.,
A CORPORATION, Claimant,
vs.
THE STATE ROAD COMMISSION OF
WEST VIRGINIA and THE STATE OF
WEST VIRGINIA, Respondents.
(No. D-105)
Lee M. Kenna, Esq., for the Claimant.
Thomas P. O’Brien, Jr., Assistant Attorney General, and Theodore L. Shreve, Esq., for the Respondents.
Petroplus, Judge:
Charleston Construction, Inc., the claimant, filed a claim in the amount of
$2,412.19, with interest thereon from July 1, 1965, arising from work done on
Project 1-64-160 (10) in Cabell County. The respondents have filed no Answer,
and the case is submitted on a stipulation admitting the facts and the amount
of damages as alleged in the Notice of Claim. The Construction Agreement has
not been made a part of the Record and the facts are sketchily presented.
It appears from the stipulation that the claimant at approximately 1:45 P.M. on
June 30, 1965, received a shutdown letter from the Project Supervisor of the
State Road Commission suspending its work as Contractor on the Project on the
ground that the sand used on the Project did not meet specifications.
206 REPORTS
STATE COURT OF CLAIMS [W. VA.
Five or six samples had been tested for gradation on the No. 100 Sieve in the
testing laboratory of the respondents and more material passed through the
sieve than the specifications allowc cl thereby appearing not to meet the
specifications. The Contractor had just received a new shipment of sand, and
assuming that the new product was not specification material, it began to
serarate the sand into stock piles in the hope that specification sand could be
found and that the work might be resumed. It is not clear from the Complaint
why this stockpiling was
necessary. The Contractor instructed its
men to report for work the following day. On July 1. 1965, the following day,
another sarpie was taken and failed to meet specifications, and the Contractor
sent its men home. Subsequent examination of the sieves in use by the testing
laboratory of the State Road Commission revealed that the No. 100 Sieve had
worn thin around the edge to such an extent that one opening had been enlarged
to two or more in several areas on the sieve, or in other words, that the
testing device was defective. It is not stipulated that the State Road
Commission knew or in the exercise of reasonable care should have known that
the testing device was defective. Immediately upon this discovery, a new sieve
was substituted and passing gradations were obtained on the sand preiously
rejected. The State Road Commission personnel were advised of this at
approximately 11:00 A.M. on July 1, 1965, and the Contractor was notified
accordingly. The Contractor then re-combined the stock piles of sand for use.
The Contractor contends that it should be compensated for equipment rental
sustained during the period of shutdown, the show-up time paid for the men
during the delay, and for the time and equipment used in re-handling the sand,
as well as for the material lost in re-handling.
The Specifications of the State Road Corinnission provide that materials
failing to meet the requirements of these Specifications shall not be used, and
that the Contractor shall furnish samples when required. All materials are to
he approved before being incorporated in the work. The duration of the
suspension of the work because of the defective laboratory tests was from 1:45
P.M. on one day until 11:00 A.M. of the next day. The prosecution of the work
was delayed for a very short period of time, and even if we assume that the
respondents were guilty of
W. VA.j
REPORTS
STATE COURT OF CLAIMS
207
negligence in not having proper
equipment on hand in the materials testing laboratory. when the error was
discovered, a correction was made and the Contractor was promptly notified that
the material met specifications. The Contractor’s work was not unreasonably
delayed, although it is admitted there was an unjustified delay of a few hours.
It is the opinion of this Court that the claimant is entitled to reasonable
compensation for any damages resulting from the improper isssuance of the
shutdown order, but only for such damages as are the direct and proximate
consequence of the shutdown order.
The unnecessary and additional stock piling of the sand in the hope that
specification sand could be found appears to have been done in good faith and
should be a proper item for compensation. Therefore, the claim for moving stock
piles is allowed in the amount of $625.68. The equipment rental loss representing
rental of various items of equipment on the job for an eight-hour period, in
the opinion of this Court, is not compensable. as the equipment was already
installed on the Project and could not have been removed and put to profitable
use elsewhere and returned to the Project within the short duration of the
temporary suspension. The equipment rental is an item of overhead that the
Contractor would be required to pay whether or not the work had been suspended.
This item in the aggregate amount of $1,166.24 is disallowed because of the
minimum duration of delay. The State Road Commission has the discretion to
suspend work if it deems it to be for the best interests of the State.
The show-up item claimed for the men who were ordered to return to work on July
1st, and sent home after another sample was taken, which failed to meet
specifications, is allowed in the amount of $137.62, as a proximate item of
damage. The cost of the sand wasted because of the re-handling of the material
in a quantity of 197 tons, the stipulated amount, is allowed in the amount of
482.65, as a proper item of damage.
The Court is of the opinion, therefore, to award the claimant the sum of $1,245.95,
said sum representing the aggregate of
the above mentioned items allowed as damages for the erroneous temporary
suspension of the work. It is the further
208 REPORTS
STATE COURT OF CLAIMS [W. VA.
opinion of this Court that being
unliquidated damages resulting from the suspension of the work, that no
interest may be allowed from July 1, 1965, to the date of this Opinion.
Claim allowed in the amount of $1,245.95.
Opinion issued January 27, 1969
J. C. HAYNES
vs.
STATE ROAD COMMISSION
(No. D-18)
George P. Sovick, Jr., for claimant.
Thomas P. O’Brien, Jr., Assistant Attorney General, and Theodore L. Shreve, for respondent.
Jones, Judge:
This claim is for extra cost incurred in pre-drilling for steel piles to
support a bridge over Interstate Route No. 64 near White Sulphur Springs. The
fill work in the bridge area had been performed by another contractor and it
appears that isolated argillaceous limestone material unintentionally was
incorporated in the fill limits of the bridge which caused drilling difficulty
not contemplated by the claimant or the State Road Commission at the time the
contract was entered into. This work was performed in 1966; and the total
amount claimed is $7,053.59. Engineers for the State Road Commission admitted
the accuracy of the actual cost analysis of the claimant, but, based on
experience and camparisons with similar projects, the State Road Commission
contended that if a heavier rig and drill had been used, the delay and extra
cost could have been substantially reduced.
By stipulation, duly filed herein, the parties hereto have agreed that the
claimant is entitled to additional compensation based on calculations made by
the State Road Commission engineers.
The Court is of opinion to accept and approve said stipulation, and
accordingly, an award is made to the claimant, J. C. Haynes, in the sum of
$4,033.76.
W. VA.]
REPORTS STATE COURT OF CLAIMS 209
Opinion issued February 24, 1969
J. I. HASS CO., INC.
V.
STATE ROAD COMMISSION
STATE OF WEST VIRGINIA
(No. D-109)
Robert E. Douglas, Esq., Hiserman, Keenan, Douglas & Kern, for
the Claimant.
Thomas P. O’Brien, Jr., Assistant Attorney General, and Theodore L. Shreve. Esq., for the State.
Ducker, Judge:
Claimant, J. I. Hass Co., Inc., was awarded on July 20, 1964 by the State Road
Commission, a contract in the amount of $294,- 370.00, on a lump sum bid, for
the cleaning and painting of the Interstate Bridge over the Kanawha River at or
near Nitro, Putnam County, West Virginia, and providing an Engineer’s Field
Office therefor, (Project 1- 64-1 (50) 43, Contract No. 3), the work under
which contract was to be commenced within ten days after the date of the
contract and was to be completed by November 30, 1964. A liquidated damages
clause in the contract specified that the contractor was to be charged $100
per day for each day the contractor delayed the work after the date specified
for completion of the work and as the work was not completed until 181 days had
expired after the completion date, the Road Commission withheld $18,100 from
the final estimate and payment. In addition to the liquidated damage amount,
the final estimate shows there remained a balance of $5,008.05 remaining due
the claimant.
Claimant now claims it is due the two items of $18,100.00 and $5,008.05,
totaling $23,108.05, and extra caulking expenses of
$2,837.44, and damages due to alleged defective specifications in the sum of
$68,327.49, making the claim a grand total of $94,272.93. Inasmuch as our
decision is to allow the $23,108.05 which will be hereafter discussed, we will
proceed to consider the damages item of $68,327.49.
210 REPORTS
STATE COURT OF CLAIMS [W. VA.
The specifications for the work were set out in great detail, providing that
the first coat or primer should be a vinyl type primer which should be applied
by brush to a dry film thickness of 1.5 millimeters on the steel which was to
be blast-cleaned to white or near white metal, the second coat to a 1.5
millimeters thickness, and the third coat to a 3.0 millimeters thickness. After
the claimant had the difficulties which it now alleges, the Road Commission agreed
to a change in the specifications to the effect that the thickness of the
primer could be reduced to 1 millimeter, the second coat to be 2 millimeters,
and the third to 3 millimeters. This modification was made after the claimant
complained of difficulty in obtaining the 1.5 millimeter thickness on the
vertical or sloping beams and upright parts of the bridge structure when it
applied the paint by spraying it instead of brushing it on as provided for in
the specifications. The paint which claimant received, and presumably ordered,
was specifically designated for spray application and in so applying it it did
not result in a 1.5 millimeter thickness. It appears that there was some delay
in submission to the Road Commission by the claimant of the paint formulation
before it was applied to the bridge, although the formulations were approved
from time to time. The evidence is contradictory as to the sand-blasting before
the application of the paint, the Road Commission claiming that the sand used
was not according to specifications. There is also evidence questioning the
quality of the labor used by the contractor, the Road Commission contending
that properly qualified and/or more labor could have done the work within the time
allotted for the completion of the job.
The claimant’s claim for damages on the basis of defective specifications has
its inception in the fact that it attempted to use paint which, when applied by
spraying, would not adhere to the vertical beams to provide the thickness
required, and consequently it contends that it should not have been required to
apply it by brush which would have necessitated more than one application to a
coat. If that conclusion is justified, it seems to us that a contractor who
claims sufficient knowledge and skill to undertake an almost three hundred
thousand dollar painting job should have known that either the specifications
were wrong when he bid on the project or that it would take brush applications
to perform the contract. Furthermore, the
W.VA.]
REPORTS STATE COURT OF CLAIMS 211
matter of the work in sandblasting was one which the claimant had to take into
consideration in deterrnimng the amount of its bid on the project, as well as
the amount of caulking or filling of cracks in the joints or separations in the
steel structure.
The claimant has introduced evidence to the effect that the vinyl paint
specified was not proper for the job, and this evidence was contradicted by the
evidence of the Road Commission, the Commission contending that a coat of paint
did not mean one application but, if necessary, it could mean more than one
application to obtain the required thickness, under the specification that it
was to be applied by brush until the Road Commission consented to the spray
application and the reduction in the primer coat. The controversy, it appears
to us, was of the claimant’s own making in obtaining paint that was only to be
spray applied and time and labor saved, instead of brushing or spraying with
more than one application to obtain a coat of specified thickness. The paint
was used and was sufficiently applied to finish the work.
It is unfortunate that the claimant had to do more work than it had
contemplated, but we cannot attribute that to the fault of, or the claimant’s
interpretation of, the Road Commission’s specifications. It may not be amiss to
consider the fact that bids for this work ran from the claimant’s low bid of
approximately $294,000 to a high bid of approximately $393,000, and it is not
unreasonable to conclude that some bidders must have properly interpreted the
specifications and to have known that more work and labor would be necessary to
apply the paint by brush. As experienced bridge painters, it seems also
reasonable to conclude that the claimant should have known before bidding
whether there were defects in the specifications and if there were defects it
should not have bid or should have bid on a different basis for the work on the
project. From all the facts we are constrained to conclude that the claim of
$68,327.93 for damages for defective specifications should be disallowed.
The item of the claim alleging that the claimant is entitled to $2,837.44 for
extra caulking expenses is not in our opinion sufficiently proven as work not
included or contemplated in the contract bid, and we uphold the Road Commission
in its refusal to honor the same.
212 REPORTS
STATE COURT OF CLAIMS [W. VA.
As to the item of $5,008.05 representing the balance of the contract price, and
which does not appear from the record to have been paid, we cannot see
justification for the withholding of payment of the same from the claimant, and
we include such amount in the award herein made.
The Road Commission withheld as liquidated damages the payment of the sum of
$18,100 for a delay of 181 days at $100 per day. While liquidated damage
clauses are generally enforceable when substantial damages have resulted, it
seems to us that inasmuch as traffic was not seriously interrupted or
inconvenienced and no substantial pecuniary loss was suffered by the State or
the public by the delay in the controversy over the paint quality and
application, such controversy was an extenuating circumstance which we think
made the enforcement of the liquidated damage clause rather harsh and
unjustifiable. So we conclude that the claimant should not suffer such loss and
we so hold.
Accordingly, we are of the opinion to and do award the claimant the items of
$5,008.05, the balance due under the contract, and the $18,100 withheld as
liquidated damages, making a total award for both said items of $23,108.05.
Award of $23,108.05.
Opinion issued January 27, 1969
SHIRLEY McKINNEY, Claimant
vs.
STATE ROAD COMMISSION, Respondent
(No. D-103)
No one appeared on behalf of the Claimant.
Larry L. S keen, Assistant Attorney General and Robert R. Harpolçl, Jr., Esq., for the State.
Petroplus, Judge:
It has been stipulated by the parties that while the State Road Commission was
conducting blasting operations three
W. VA.]
REPORTS STATE COURT OF CLAIMS 213
miles east of the junction of U.S. Route 119, and State Local Service Road
119/16, on July 30, 1968, a stone was thrown against the front windshield of
the automobile owned by the Claimant, which was legally parked at the time,
causing damage to the windshield in the amount of $94.35.
In accordance with stipulation of the facts, which the Respondent thoroughly
investigated, we are of the opinion to and find that there is absolute
liability in this matter, and that the Claimant is entitled to recover from the
State the damages so claimed. We make an award to her in the amount of $94.35.
Claimed allowed in the amount of $94.35.
Opinion issued January 27, 1969
MOUNTAIN STATE CONSULTANTS, INC.
a West Virginia Corporation, or in the alternative,
FRED L. RIPPETOE, Claimant,
vs.
THE STATE OF WEST VIRGINIA,
THE WEST VIRGINIA WORKMEN’S COMPENSATION
FUND and THE WEST VIRGINIA WORKMEN’S
COMPENSATION COMMISSIONER, Respondents
(No. D-100)
R. G. Kelly, Esq., and John
L. McClaugherty, Esq., for the
Claimant.
Thomas P. O’Brien, Jr., Assistant Attorney General, for the Respondents.
Mountain State Consultants, Inc., a corporation, has submitted this claim on
the undisputed facts set forth in the Notice of Claim.
Fred L. Rippetoe had been employed as a Clerk in the Accounting Division of the
Respondent, Workmen’s Compensation Fund, from 1933 to 1935, when he was named
Director of the Accounting Division, and held that position without
interruption until July 1, 1966. At the 1965 Regular Session of the West
214 REPORTS
STATE COURT OF CLAIMS [W. VA.
Virginia Legislature, a Compulsory Retirement Age Act was enacted, (Chapter 5,
Article 14, West Virginia Code) prohibiting the employment of persons seventy
years of age or older by the State of West Virginia, or any of its Departments or
Agencies, subject to certain exceptions which did not apply to Mr. Rippetoe. At
the time of the passage of this Act, Mr. Rippetoe was over seventy years of age
and, therefore, could not be retained as a State employee. His retirement being
forced by law, Mr. Rippetoe formed a corporation with members of his family,
named it Mountain State Consultants, Inc., and offered Specialized Consultant
Services in the field of Workmen’s Compensation and Employment Security to the
general public, and the Workmen’s Compensation Commissioner contracted for the
services of the corporation on behalf of the Department.
During his thirty-three years of service with the Workmen’s Compensation Fund,
Mr. Rippetoe became an expert with respect to the actuarial soundness of the
Fund, the classification of its subscribers, rate making procedures,
computation of merit ratings, and many other intricate accounting features, and
developed a unique ability in resolving questions relating to the
administration of the Fund. Apparently no one had been trained to replace him,
and he became indispensable to the proper and efficient operation of the Fund.
The Workmen’s Compensation Commissioner, alarmed at the enforced retirement of
Mr. Rippetoe by the Act of the Legislature, and needing his services, sought
the continued services of Mr. Rippetoe in negation of the Act by entering into
a written Contract dated June 28, 1966, with the corporation he formed,
Mountain State Consultants, Inc., for rendering the continued services of Mr.
Rippetoe until a new Director of the Accounting Division could be trained to
perform Mr. Rippetoe’s duties. The corporation was to be paid the sum of
$7,200.00 in quarterly installments for the fiscal year ending June 30, 1967,
and the Contract was approved and consented to by the Director of the Division
of Purchases of the West Virginia Department of Finance and Administration, the
Workmen’s Compensation Commissioner, and as to form by the Attorney General’s
Office. At the time of Mr. Rippetoe’s retirement his annual salary was
$9,600.00.
W. VA.j
REPORTS STATE COURT OF CLAIMS 215
Upon presentation of the first quarterly statement for services rendered, the
State Auditor requested an Opinion of the Attorney General as to the validity
of the claim, and was advised that the corporate entity should be disregarded
and payment refused because Mr. Rippetoe was employed in violation of the
provisions of the Compulsory Retirement Age Act. The Auditor refused to issue a
warrant in payment of the invoice, and advisel that future invoices
contemplated under the Contract would not be paid. The Workmen’s Compensation
Commissioner, disregarding the Attorney General’s opinion, persuaded the
Mountain State Corporation to continue rendering the services until the end of
the fiscal year.
All of the aforementioned facts are admitted in the Answer of the State, and
the claim of Mountain State Consultants, Inc., in the amount of $7,200.00
presents an issue of law for decision by this Court.
All of the powers, duties and responsibilities of the Workmen’s Compensation
Commissioner are statutory and are derived from Chapter 23 of the Official Code
of West Virginia of 1931, as amended. McGeary
v. State Compensation Director, 148
W. Va. 436, 135 S.E. (2d) 345. Among those powers delegated to the Commissioner
are the right to employ a secretary, actuary, accountants, inspectors,
examiners, experts, clerks, stenographers arid other assistants, and fix their
compensation. Chapter 23, Article 1, Section 6, W. Va. Code. The Compulsory
Retirement Act placed limitations on this power to employ personnel for his
Department. The authority of a public officer to enter into Contracts is
defined by law, and by Constitutional limitation, even the Legislature may not
authorize the payment of a claim created against the State under any Contract
made without express authority of law. (See Art. 6, Sec. 38, W. Va.
Constitution).
Although it is conceded that the employment of Mr. Rippetoe’s corporation was
for an essential service needed by the State for the efficient administration
of the Department, and that the claim is meritorious, and that the State
benefitted by the expert consultant services furnished by the claimant, we find
no authority in the statutory law of our State authorizing the Workmen’s Compensation
Commissioner to enter into a
216 REPORTS
STATE COURT OF CLAIMS [W. VA.
Contract of this nature. Parties contracting with the State or any of its
Agencies do so at their peril, and must inquire into the legal powers of the
State representatives to incur liability on behalf of the State.
In addition to finding that the Contract of Employment was unlawful, because it
was not within the statutory powers of the Commissioner to engage an
independent consultant who was not an employee of the State, we further find
that the device of using a corporate entity to shield the reemployment of Mr.
Rippetoe was in violation of the Compulsory Retirement Age Act. It did by
indirection what could not be done directly. The legal entity will be
disregarded where it is used to cloak or cover the circumvention of a Statute.
No authority need be cited that the fiction of a corporation will be
disregarded by the Courts if the corporation is formed to accomplish an illegal
act, and the parties will be dealt with as though no corporation was formed.
The corporate fiction under the facts was merely an alter ego or a business
conduit for Mr. Rippetoe to continue his services to the State despite his
mandatory retirement by law.
For the foregoing reasons, this Court is of the opinion to uphold the Auditor’s
refusal to issue a warrant for the payment of the claim and, therefore, no
award is made.
Claim disallowed.
Opinion issued Janwiry 27, 1969
NELLO L. TEER COMPANY, a corporation,
Claimant
vs.
STATE ROAD COMMISSION,
STATE OF WEST VIRGINIA, Respondent
(No. D-89)
Vincent V. Chaney, Esq., for the Claimant.
Thomas P. O’Brien, Jr., Assistant Attorney General and Theodore L. Shreve, Esq., for the Respondent.
Petroplus, Judge:
The Nello L. Teer Company, claimant, on June 28, 1965, entered into a written
Contract with the State Road Commission to
W. VA.1
REPORTS STATE COURT OF CLAIMS 217
build and complete according to Plans and Specifications of the Commission a
road in the Counties of Raleigh and Wyoming, in West Virginia, known as the 3
Forks to Bolt Road, Project No. 3848 C-i, and for unit prices based on
estimated quantities set forth in a Proposal claimant agreed at its expense to
furnish all the necessary materials, labor, tools and appliances to build the
road in a good workmanlike and substantial manner. The estimated cost under the
Contract was $1,736,891.20. Final payment by the State was in the amount of
$2,025,803.48, due primarily to a substantial overrun in an item designated as
“Unclassified Excavation” in the Contract. Unclassified excavation is defined
in the Specifications as building a roadway and forming the embankments as
required by the Plans, or as directed by the Engineer to conform to the Plans.
The Contract required the Contractor to sow seed, apply fertilizer,
agricultural limestone and mulch material to areas shown on the Plans. The
difference in the designed slopes and the actual slopes constructed gives rise
to this claim for seeding and mulching in areas extending beyond the
right-of-way of the road construction project.
The Standard Specifications, Roads and Bridges of the State Road Commission,
adopted in 1960, were incorporated by reference in the contractual documents,
supplemented by certain Special Specifications, and pertinent references
thereto were attached as Exhibits to the claimant’s Petition. The amount
claimed is $19,975.50, for additional seeding and mulching performed by the
claimant, which includes the additional limestone and fertilizer which is
required for the excess seeding and mulching. The facts of this case have been
substantially stipulated, and the quantities of material furnished and work
performed are not in dispute. Neither is there any dispute that the work was
properly performed in a workmanlike manner acceptable to the State Road
Commission.
Due primarily to changes in the grade of the road, there was a substantial
overrun of unclassified excavation in the amount of 324,000 cubic
yards, with a resulting increase in the size and number of waste areas on the
project for disposal of the excess waste material. The excess waste material
was to be disposed of by and at the expense of the Contractor. The Standard
Specifications provided:
218 REPORTS
STATE COURT OF CLAIMS [W. VA.
“Waste: All surplus material shall be used in the uniform widening of
embankments or shoulders as directed by the Engineer. * * * Whenever in the opinion of the Engineer, surplus
material is not required for such widening, it shall be wasted in spoil banks
or waste sites provided by the Contractor. * * * No
material may be wasted at places other than those approved.”
(Section 2. 2. 3 D (3) Waste)
The Special Specifications in the Contract provided:
“Location of waste areas and borrow pits must be approved by the Design
Division.”
“No waste areas shall be located above roadway.”
“Borrow pits and waste sites as required (Including clearing and grubbing of
same) to be furnished by the contractor at his expense, cost to be included in
the unit price bid for Item 2, unclassified excavation.”
“Borrow pits and waste sites adjacent
to new highway construction will be
graded to conditions satisfactory to the engineer and seeded and mulched the same as roadway construction.”
The only issue before the Court is to
properly interpret the Contract and to ascertain the intention of the
contracting parties with relation to the extra items claimed to be compensable.
The Contractor has not been paid for all the seeding and mulching for which it
would have been paid as normal seeding area on the designed slopes. Is the
State Road Commission, under the terms of this Contract, required to pay Nello
L. Teer Company, the Contractor, for all the seeding and mulching that the
Contractor performed (Including the applications of limestone and fertilizer),
or only for such seeding and mulching for which it would have been paid, had
certain waste areas or spoil banks not been adjacent to the highway, thereby
creating enlarged and extended slopes to be seeded and mulched.
The work was performed under the supervision of the Engineer of the State Road
Commission, who decides all questions which may arise as to the quality and
acceptability of the work and materials. He also is empowered to decide all
questions which may arise as to the interpretations of the Plans and
Specifications, and all questions as to the fulfillment of the
W VA.] REPORTS
STATE COURT OF CLAIMS 219
terms of the contract on the part of the Contractor. Any deviations from the
approved Plans, profiles and cross-sections on file in the State Road
Commission office, which arise by the exigencies of the construction, must be
authorized by him in writing. All of these matters appear in the Specifications
of the Contract.
The Contractor by choice and on his own volition secured Lease Agreements from
property owners covering certain waste areas which were adjacent to the
right-of-way, and on September 23, 1965, submitted his choice of locations to
the Commission for approval. Such approval was given in writing by the
Commission on November 17, 1965, subject to certain restrictions dealing with
drainage and protection of the roadway embankments from erosion should the
waste areas subside. It appears from the stipulation and the evidence that by
choice of the Contractor the excess waste material was placed on the normal
designed einbankments and slopes called for in the Plans, thereby extending the
embankmets and slopes into areas appreciably beyond the road construction
right-of- way. The claimant as a consequence created a situation requiring
additional seeding and mulching beyond that originally contemplated by the
terms of the Contract for the normal embankments and slopes of the road. The
enlargement and extension of the slopes into areas of privately owned property
required almost double the amount of seeding and mulching which would have been
required had the waste areas not been adjacent to the highway. The Contractor
now seeks payment on a unit price basis for the additional seeding and
mulching, as well as additional agricultural limestone and fertilizer required,
contending that under the Special Specification it was required to seed and
mulch waste sites adjacent to the new highway construction in the same manner
as roadway construction. We assume that had the excess material been disposed
of elsewhere in spoil banks or waste sites away from the road construction that
the additional seeding and mulching would not have been required by the terms
of the Contract.
From October, 1966, to August, 1967, the additional seeding and mulching was
performed without compensation and without complaint by the Contractor or his
Subcontractor, and it was only when about four more acres remained to be seeded
220 REPORTS
STATE COURT OF CLAIMS [W. VA.
that the question was raised that additional seeding and mulching had not been
paid for as the work progressed on monthly estimates. On the final estimate
dated April 3, 1968, the quantities allowed for limestone, fertilizer, seeding
and mulching were based on normal seeding areas.
The Contractor contends that a proper interpretation of the contract requires
that the excess seeding and mulching required by the contract to be performed
be compensable. The State’s position is that inasmuch as the Contractor was
required to furnish waste sites at its expense, additional seeding and mulching
required by unnecessarily using the surplus waste material for widening the
embankments or shoulders of the road should not be a compensable item,
especially since such seeding and mulching is in areas outside of the
right-of-way. The actual slopes were almost doubled in area from the originally
designed slopes by and for the benefit of the Contractor.
It is the opinion of this Court that the intention of the parties as expressed
in the original contract was to make compensation for the seeding and mulching
required for the designed embankments and slopes of the new road as shown by
the Plans, profiles and cross-sections. At that time the location of the waste
sites had not been determined, and when the Contractor later decided to select
waste sites for reasons of his own adjacent to the highway, he subjected
himself to the special provision that waste sites adjacent to the new highway
had to be graded and seeded and mulched in the same manner as the originally
designed roadway construction. The surplus material clearly was not reasonably
required for road-widening purposes, and it was to be placed in waste sites
provided by the Contractor at its expense, the cost of which was to be included
in the unit price bid for cubic yards moved under unclassified excavation. The
Contractor has been paid for the seeding and mulching that it would have
performed on the normal embankments and slopes required to support the new
road. The State Road Commission did not require the Contractor to waste in the
areas in which he wasted excess material, but merely approved this method of
handling the surplus material.
Even if we assume in this case that by giving its approval, the State Road
Commission directed or ordered the Contractor
W. VA.]
REPORTS STATE COURT OF CLAIMS 221
to dispose of the waste material on
planned embankments and shoulders, thereby increasing the area to be seeded,
this would constitute extra work ordered by the Commission and under the
regulations required a Supplemental Agreement signed by both parties fixing a
fair and equitable compensation for the extra work. Such an Agreement was not
requested by either party to the Contract. We also call attention to the
provision in the Standard Specification, 1.5.11, which requires a Contractor
who deems extra compensation is due him for work or materials not clearly
covered in the Contract, to notify the Engineer in writing of his intention to
make claim for extra compensation before he begins the work on which he intends
to base his claim. If such notification is not given, and it was not given in
this case, then the Contractor agrees to waive any claim for such extra
compensation.
The Contract in this case is not free from ambiguity as to who shall pay for
the seeding and mulching of waste sites adjacent to the new highway
construction. We feel that a reasonable and just construction, taking into
consideration the object and purpose of the Contract, the designed embankments
and slopes, the situation of the parties, the Plans and Specifications
incorporated therein by reference, and the designation of slope lines for the
embankments on the detailed Plans, constrain this Court to conclude that it was
not the intention of the parties that the Stale Road Commission should pay for
seeding and mulching enlarged and extended areas of slope beyond the
right-of-way, which extended slopes resulted from disposal of excess waste
materials in pits adjacent to the highway, and this notwithstanding that the
specifications required these areas to be seeded and mulched. Since the
furnishing of the waste sites was made the responsibility of the contractor, it
would he reasonable to assume that any treatment required for these waste sites
such as compaction, drainage, seeding or mulching should also be his
responsibility and at his expense. We conclude that it was not the intention of
the contracting parties to make the waste sites cost items of the contract, and
unless the contract clearly provided that the waste sites were part of the road
construction project we must assume that all costs connected therewith were to
be borne by the Contractor. If the terms of the agreement were doubtful and
uncertain on this point, the Court must give consideration to the fact that
222 REPORTS
STATE COURT OF CLAIMS [W. VA.
the specifications outlined the procedures that the Contractor should follow to
secure compensation for controvertible claims or so-called extra work, as well
as to the conduct of the parties in not claiming or allowing additional seeding
and mulching in the monthly estimates and work progress payments. True the
latter conduct would not constitute an estoppel, but it would be some evidence
of how the parties construed the contract. The claimant is chargeable with
knowledge that it was dealing with a governmental agency, with employees and
agents whose duties are defined by law and with limited powers to contract for
cost items not clearly made a part of the contract. If such a contract did
provide compensation for items outside of the limits of the roadside
construction, we would also be confronted with the necessity of considering the
ultra vires nature of such provisions.
After considering all of the facts stipulated, the evidence and all reasonable
inferences derived therefrom, the Court is of the opinion that the claimant has
not established that the State in equity and good conscience should discharge
and pay the alleged claim, and, therefore, we are of the opinion, to and do not
make any award to the claimant herein.
Claim disallowed.
W. VA.] REPORTS
STATE COURT OF CLAIMS 223
Opinion issued April 15, 1969
ROBERT C. OWENS
(D-134)
VINCENT LOPEZ
(No. D-135)
RICHARD GORDON
(No. D—136)
vs.
STATE ROAD COMMISSION
H. Laban White, Jr., Attorney at Law, for the claimants.
Thomas P. O’Brien, Jr., Assistant Attorney General, for the State.
Robert R. Harpold, Jr., Attorney at Law, for the State. Ducker, Judge:
The cases of the claimants, Robert C. Owens, in the amount of $681.73, Vincent
Lopez in the amount of $804.09, and Richard Gordon in the amount of $646.77
against the State Road Commission are based upon the same material facts
stipulated by the parties as true, and by agreement are jointly considered by
the Court. There is one fact of difference, which the Court considers as
immaterial, to the effect that Owens and Gordon cooperated with the Road
Commission officials in their investigation of the matters involved, while Lopez
did not initially do so, and, as a result, Lopez was considered as
disciplinarily suspended from November 9, 1967 through January 2, 1968, and
consequently not completely exonerated from the charge of wrong-doing, while
Owens and Gordon were completely exonerated from the charges against them
without any recorded suspension.
The claims are for loss of wages as employees of the State Road Commission, the
claimants being plant inspectors of District Four, whose duty it was to make
gradation and quality reports on materials and supplies sold and delivered by
suppliers to the Commission. Upon an investigation to determine whether reports
of such inspections were correct, it was discovered that false reports had been
made by inspectors. In such investigation, eight inspectors, including these
three clai
224 REPORTS
STATE COURT OF CLAIMS [W. VA.
mants, were suspended from their
employment, five of whom admitting the charges of falsification and these three
claimants denying any guilt in the matter. Upon the hearing, all three of the
claimants herein were found not guilty, and completely exonerated, and
reinstated to their employment, but no compensation in the form of lost wages
or damages otherwise was awarded them. The sole question here is whether they
should be paid the amounts claimed herein as loss of wages they would have
earned during the period of their suspension.
Counsel for the claimants admit that there are no department rules or
regulations covering the situation here involved, and it further appears that
the ciair,iants held their emoloyrnent without any specific tenure, but only at
the will of Road Commission, and consequently contractually they are without
remedy at law unless as individuals they could maintain actions against the
officers personally on some tort basis of damages resulting from the untrue
charges made against them. It appears also that the clairrants were not ab]e
to, or at least did not, procure other employment during the period of their
unemployment, and consequently there was no reduction in their loss of wages.
As they had no way of knowing how long the suspension would last, they could
hardly have been expected to be able to minimize their loss by obtaining other
employment, a quite improbable thing.
While it is generally the duty of this Court to base its findings against the
State on grounds which would have been valid against an individual,
nevertheless, we have the duty to weigh the equitable situation, particularly
where the legal remedy may be insufficient. In the case here we are of the
opinion that in equity and good conscience, these claimants have been unfairly
damaged in their loss of wages during the period of the investigation of untrue
charges as to which they were completely exonerated, and so we award the
claimant, Robert C. Owens $681.73, Vincent Lopez $804.09 and Richard Gordon
$646.77.
Awards:
Robert C. Owens $681.73.
Vincent Lopez $804.09.
Richard Gordon $646.77.
W. VA.]
REPORTS STATE COURT OF CLAIMS 225
Opivion issued January 27, 1969
RAHALL REALTY COMPANY, INC.
V.
DEPARTMENT OF WELFARE
(No. D-90)
W. H. File, Jr., Esquire of Bowers, File, Hodson & Payne, for the
claimant.
Thomas P. O’Brien, Jr., Assistant Attorney General for the State.
Ducker, Judge:
The claimant. Rahall Realty Company, Incorporated, was and is the owner of a
building known as the President Hotel, located at 309 Neville Street, Beckley,
Raleigh County, West Virginia. containing approximately 15,000 square feet
including a parking space basement.
On January 3, 1967, a lease of said property was made to the State of West
Virginia by the Commissioner of Finance and Administration for a five month
period from February 1, 1967, to June 30, 1967, at a rental of $2,000 per
month, and on July 1, 1967, a second lease between said parties was entered
into for a one-year period from July 1, 1967 to June 30, 1968, at a rental of
$3,000 per month. These leases were for the use of said property by the
Department of Welfare. and it was contemplated that the rent would be paid by
the Raleigh County Court to the extent of fifty-four per cent and by Federal
matching funds to the extent of forty-six per cent. The respective payment
amounts were to be paid into a special account of the State and by the latter
to the lessor. As the County Court of Raleigh County did not provide its share
of these funds, the State did not receive any matching funds from the Federal
Government, and, consequently, the rentals contracted for in the leases were
not paid, and claimant now claims a total sum of $40,500.00 representing three
months at $2,000.00 per month and twelve months at $3,000.00 per month, less
$1,500.00 which is deducted because Lessor deprived Lessee of possession of the
premises for two weeks in March, 1968.
226 REPORTS
STATE COURT OF CLAIMS [W. VA.
The record shows that there was not adequate room in the Raleigh County Court
House to house the welfare department with approximately fifty-five employees,
and office space was not available except to take over a building such as the
one here involved with necessary extensive alterations and remodeling. The
evidence shows that claimant expended approximately $92,000.00 in the making of
such alterations and remodeling, although the same was originally estimated to
cost about $65,000.00. The owner had previously been receiving $1,800.00 per
month from the Army and about $1,000.00 per month from permanent guests without
any alterations or remodeling. The amount of the rent provided for in the
leases to the State was according to estimates and comparative values, fair.
The Welfare Department took possession immediately in accordance with the terms
of the first lease and continued to use and occupy said premises during the
whole terms of said two lease agreements, but no rent was paid.
The Department of Welfare endeavored to get the Raleigh County Court to put
into its budget and levy for the fiscal year 1967-1968 a sufficient amount to
meet the County’s share of the Welfare Department’s cost in the matter, but it
only provided the sum of $3,500.00 for all its welfare purposes. It appears
that none of this appropriation was made applicable to this lease rent account.
The State Commissioner of Welfare by the Attorney General instituted a mandamus
proceeding in the Supreme Court of Appeals of West Virginia seeking to compel
the County Court of Raleigh County to amend its 1967-68 budget to include a
sufficient amount to cover the rents specified in the leases, but the Supreme
Court denied the petition, apparently for the reason that there was no clear legal
right to require the County Court to do so, which left the State and the Lessor
without any relief except through this Court which could waive the
constitutional immunity of the State. So the case must be considered as to
whether the claim is one on which the claimant could recover if the defendant
were an individual or a private corporation, and is a claim which should in
equity and good conscience be paid by the State. We believe that no defendant
other than the State could escape liability for the rent indebtedness incurred
where possession and use of the premises had
W.VA.] REPORTS
STATE COURT OF CLAIMS 227
been obtained, the lessor had made expensive alterations, and the rent charges
were fair and reasonable, surely on a quantum meruit basis.
It is indeed unfortunate that the State officers did not obtain the necessary
action on the part of the Raleigh County Court to validate the contract in the
beginning and place this burden on that county instead of on the State as a
whole. The State officers purported to represent the State and while it may
have been the duty of the Lessor to see that all legal prerequisites were met,
nevertheless a citizen, relying upon the ability of and confidence in the
public official and expending large sums of money to comply with the purported
contract, should not in good conscience be deprived of his property, especially
where the State has had full value in the matter.
We are, therefore, of the opinion to and do hereby award the claimant the sum
of $40,500.00.
Award of $40,500.00.
Opinion issued July 21, 1969
THORNTON DESKINS, Claimant
vs.
STATE OF WEST VIRGINIA, Respondent
(No. D-131)
Claimant appeared in person.
Thomas P. O’Brien, Jr., Assistant Attorney General and Robert R. Harpold, Jr., Esq.,
for the Respondent
Petroplus, Judge:
Claimant, Thornton Deskins, gave notice of claim for the sum of Two Hundred
Dollars based on a factual allegation that in September and October, 1968,
employees of The State Road Commission were blasting rock on a roadway above
and about 224 feet from his dwelling house, causing fragments and debris to
fall on the roof of his house, thereby damaging the roof. It was also charged
that the same employees dumped several truck loads of dirt and rock on his
property damaging several
228 REPORTS
STATE COURT OF CLAIMS (LW. VA.
feet of a wire fence within the
boundaries of his property. Upon the evidence presented, the Court is of the
opinion to and does hereby allow said claim in the amount of $100.00 as fair
and reasonable compensation for the damages sustained by the wrongful trespass
on his property.
Award of $100.00.
Opinion issued Ju1 21, 1969
LAWRENCE V. JORDAN
vs.
DEPARTMENT OF EDUCATION
(No. D-143)
No appearance for the claimant.
Thomas P. OBrien, Jr., Assistant Attorney General, for the respondent.
Jones, Judge:
During the period July 3, 1964 to June 27, 1968, the claimant, Lawrence V.
Jordan, was Director of Student Teaching at West Virginia State College, and in
the course of his employment he made numerous trips and incurred expenses for
which he was entitled to be reimbursed. Expense accounts for the twelve months
are a part of the record, and the total claim in the amount of $272.14 was not
contested by the State. It further appears from the record that this claim was
presented to the Business Manager of West Virginia State College on June 30,
1968, the last day of the fiscal year, and at that time there were no funds
available from which the claim could be paid.
The Attorney General admits the validity of this claim, and in equity and good
conscience the same should be paid. Therefore, the Court hereby awards to the
claimant, Lawrence V. Jordan, the sum of $272.14.
W. VA.]
REPORTS STATE COURT OF CLAIMS 229
Opinion issued April 24, 1969
JAMES AND NORMA ROBISON
vs.
STATE ROAD COMMISSION
(No. D-119)
Claimants appeared in person.
Thomas P. O’Brien, Jr., Assistant Attorney General, and Robert R. Harpold,
Jr., for the respondent.
Jones, Judge:
This claim is for damages in the amount of $202.62, sustained when the
claimant, Norma Robison, drove her 1966 model white Plymouth automobile over a
State road between Stumptown and Frametown, in Braxton County, soon after the
road had been treated by the State Road Commission with prime tar and during a
hard rain which caused the tar to gather in pudddles and prevented it from
soaking into the ground. There is nothing in the evidence to indicate that the
claimant drove her car at an unreasonable speed, and claimant’s testimony was
corroborated by State Road Commission personnel to the effect that the tar did
splash onto the painted surface of the automobile, and that the paint was
severely damaged thereby.
Invoices were presented by the claimant showing the cost of cleaning and
repainting portions of the automobile in the amount of $202.62, and in the
Court’s opinion such damage was the result of negligence on the part of State
Road Commission employees and in equity and good conscience the claimants
should be indemnified. Therefore, the claimants, James and Norma Robison, are
hereby awarded the sum of $202.62.
230 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued February 10, 1969
S.
J. GROVES & SONS COMPANY
vs.
STATE
ROAD COMMISSION
(No. D-91)
Georqe
S. Sharp, Kay, Casto &
Chaneij, and Thomas Heal elJ, for
the claimant.
Larry L, Skeen, Assistant Attorney General, and Theodore L. Shreve.
for the respondent.
Jones, Jude:
On August 19, 1964. the claimant, S. J. Groves & Sons Company. was awarded
a contract by the respondent, State Road Commission of West Virginia, to
construct approximately six miles of Interstate Route No. 31 near Pikcside in
Berkeley County. The work was undertaken and coiupleted within the specified
time and a settlement was made, subject to the claimant’s right to assert this
claim. The claim, in the total amount of $40,756.02, is made up of three items,
involving unclassified excavation, Portland Cement concrete pavement and borrow
excavation.
With reference to the claim for unclassified excavation not paid for, the
respondent’s answer averred that the plans and specifications did not require
the contractor to make a rock under cut in the median area, and that it
therefore was unnecessary for the State Road Commission to keep any records in
that connection. However, Section 2.2.3. (a) (4) of the State Road Commission
Standard Specifications provides as follows:
“In roadway cuts where ledges of rock or hard shale, boulders, or other solid
formations are encountered at or near grade elevations, grading shall be
carried to a depth of twelve inches below the subgrade elevation for the entire
width of the road bed including the median.”
And the typical cross section which is a part of the project plans shows a
twelve-inch undercut in the median when rock is encountered. The claimant’s
drilling and blasting super-
W. VA.]
REPORTS STATE COURT OF CLAIMS 231
intendent, grading superintendent, and
field engineer all testified that this work was done, and the field engineer,
who is a graduate geologist, further testified that, using planned cross
sections, he calculated the quantity of rock undercut in the median strip to be
6,687 cubic yards. At the contract rate of $1.38 per cubic yard of unclassified
excavation, the amount claimed for this item is $9228.06. The State Road
Commission paid for 730,926 cubic yards of rock undercut within the roadway,
without field measurements, employing planned cross sections for the purpose.
At one point during the hearing of this case, counsel for the State Road
Commission stated that the claimant’s evidence pertaining to this item of
damage was the “*
type of information we had asked for “ and indicated that a stipulation might be possible. iNo
stipulation was forthcoming, but it appears to the Court that the evidence on
this part of the claim preponderates in favor of the claimant.
The State Road Commission denied payment for 76.67 square yards of Portland
Cement concrete pavement at $5.91 per square yard, a total of $453.12. The
deduction was based on one core sample which measured 8½ inches instead of the
specified 9 inches in thickness. Under the Standard Specifications, where there
is a deficiency of ½ inch, the contractor may be required to remove the
deficient area and replace the same with a slab of satisfactory quality and
thickness, or the contractor will be allowed the choice of leaving the
defective slab in place without receiving any compensation therefor. If the
contractor believes that the cores and measurements taken are insufficient to
fairly indicate the actual thickness of the pavement, he may request additional
cores and measurements, the cost of which shall be paid by the party not
prevailing. In this case, the claimant had no knowledge of the alleged
deficiency until negotiations were underway on the final estimate. The claimant
then requested an opportunity to measure the core sample and when a
representative went to the place where the core had been stored, he found that
it had been destroyed in a strength test. The claimant also asked permission to
take its own corings, but was refused. The State Road Commission elected to
leave the defective slab in place and assuming that its measurement was
accurate, payment was properly withheld. However, under the Specifications, the
claimant had the right to contest the measurement and it was given no
opportunity to do so. The State
232 REPORTS STATE
COURT OF CLAIMS [W. VA.
Road Commission having accepted the pavement under these circumstances, we are
of opinion that the claimant should be compensated at the contract price in the
total sum of $453.12.
No borrow excavation was contemplated in the original contract, but during the
course of construction it was found that additional material outside the
right-of-way would be needed and a supplemental agreement was entered into,
providing for borrow material at $1.38 per cubic yard. It is agreed that 113,
272 cubic yards of borrow material were incorporated in the project and that
the claimant has been paid for 87,443 cubic yards. The claimant received no
payment for the remaining 25,829 cubic yards. It is the State Road Commission’s
contention that the claimant wasted 21,135 cubic yards of suitable material
which should be deducted from the borrow excavation. This quantity was derived
from State Road Commission measurements of three waste pits and the
measurements are not contested by the claimant. The claimant admits that it wasted
1,449 cubic yards of boulders and 9,862 cubic yards of wet material which could
have been used for embankment on the project. The State Road Commission agrees
that it directed the claimant to waste 1,689 cubic yards of unsuitable
material, leaving 15,535 cubic yards in controversy. The claimant adduced
testimony to show that the 15,535 cubic yards of waste pit material is made up
of 5,000 cubic yards of base stone loss, 1,648 cubic yards of concrete paving
loss, 3,226 cubic yards of batch plant area stripping, and 6,261 cubic yards of
miscellaneous debris.
The State Road Commission’s project engineer did not dispute the claimant’s
contention that approximately 5,000 cubic yards of base stone was delivered on
the job and not paid for. However, he contended that the material was not taken
to the waste pits but was literally wasted on the highway shoulders and median
and used on private subdivision roads nearby. The claimant gave testimony that
this quantity of stone was used to construct crossovers for batch trucks and,
having been contaminated, was removed to the waste pits. Photographs produced
by the State Road Commission show substantial quantities of excess stone in the
median. The charge that some of this stone was used on other roads in the area
was not substantiated. The Court recognizes a preponder
W. VA.]
REPORTS STATE COURT OF CLAIMS 233
ance of the evidence in favor of the claimant insofar as a portion of the base
stone waste is concerned but not as to the quantity claimed. Further
recognizing its inability to ascertain a quantity certain in this regard, the
Court is of opinion to allow one-half of the quantity claimed, or 2,500 cubic
yards.
A witness for the claimant testified that the normal paving loss, concrete
batched but not paid for, was 7%, and this experience is not contested by the
State Road Commission. The claimant estimated the 3% of the lost concrete may
have wound up in the base course, and that 4% or 1,648 cubic yards, went to the
waste pits. However, the State Road Commission project engineer testified that
random corings showed the pavement to have an average depth of 9.4 inches
instead of the 9 inch thickness called for in the contract, an overrun of 4.4%,
which more than accounts for the claimed loss of 4%. Proof of this item by the
claimant is inconclusive and the Court is constrained to disallow this portion
of the claim.
The claimant’s batch plant area was acquired under a contract with the owner of
the land which provided that the topsoil should be saved and at the conclusion
of the project, a 6 inch layer of earth, presumably contaminated by the
batching operations, should be removed before the topsoil was replaced. The 6
inch strip from 4 acres of land was calculated to be 3,226 cubic yards.
According to the claimant’s evidence, this quantity was hauled to the waste
pits. There is no real contradiction of claimant’s testimony in this regard and
the Court is of opinion to give the claimant credit for the quantity asserted.
The claimant further contends that it wasted miscellaneous materials such as
stone fences, a concrete platform, a blockhouse, debris from a tire burning
site, an automobile, bands and boxes from seeding. operations, form lumber and
root mat, and arrived at a quantity of 6,261 cubic yards by deducting the other
waste items from the 21,135 cubic yards of material in the three waste pits.
Proof of the waste of these miscellaneous materials is weak and unconvincing
and this item of damage is disallowed.
The State Road Commission deleted from payment 6,383 cubic yards of borrow
material for overembankment. This deletion was based on calculations of a Staff
Engineer for the
234 REPORTS
STATE COURT OF CLAIMS [W. VA.
Commission, working with a
representative of the claimant. The State Road Commission Engineer testified
that if he had adhered strictly to the “pay” or “neat” lines,
“‘ the deduction would have been 16,000 plus instead of
6.000.” The Court believes that the claimant received the benefit of any doubt
with regard to these computations and in the Court’s opinion the deduction for
overernbankment was proper.
The claimant concedes that 3311 cubic yards of borrow excavation should be
deducted from the 25,829 cubic yards not paid for, and claims that it is
entitled to payment for 22,518 cubic yards at $1.38 per yard, a total of
$31.074.81. Suemarizing our conclusions with regard to the several items in
controrersy, the Court is of opinion to require further deductions as follows:
2,500 cubic yards of base stone loss: 1,648 cubic yards o cencrcte paving loss:
6.261 cubic yards of miscellaneous waste: and 6.383 cubic yards of
overembankrnent; a total of 16,792 cubic yards; and the Court will allow
payment for the remaining 5,726 cubic yards at $1.38 per yard. a total of
$7,901.88.
For the reasons hereinabove set forth, the Court is of opinion that the
claimant should lecover the following: $9,288.06 for rock undercut in the
median; $453.12 for Portland Cement concrete Pavement; and $7,901.88 for borrow
excavation; a total of $17,583.06; that the allowance of such amount is just
and equitable and in good conscience should be paid; and, therefore, it is the
Court’s judgment that the claimant, S. J. Groves & Sons Company, should be
and is hereby awarded the sum of $17,583.06.
W. VA.]
REPORTS STATE COURT OF CLAIMS 235
Opinion issued April 24, 1969
GEORGE
B. SOUTHERN, JR.
vs.
STATE ROAD COMMISSION
(No. D-141)
No
appearance for the claimant.
Thomas P. O’Brien, Jr., Assistant Attorney General, and Robert R. Harpold, Jr., for the respondent.
Jones, Judge:
The claimant, George B. Southern, Jr., drove his private automobile in the
performance of his duties as District Sign Foreman of the State Road
Commission, and in so doing incurred expenses in the amount of $316.08 during
the months of May and June, 1967. However, he filed his expense account after
the end of the fiscal year and funds were not then available for the payment
thereof.
Counsel for the State Road Commission and the Attorney General have stipulated
that the amount of this claim is correct and is justly owing to the claimant.
The Court is of opinion that the petition and stipulation present a valid claim
against the State Road Commission which in equity and good conscience should be
paid, and, accordingly, an award is hereby made to the claimant, George B.
Southern, Jr., in the sum of $316.08.
236 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued April 24, 1969
STATE CONSTRUCTION, INC.
vs.
STATE ROAD COMMISSION
(No. D-115)
Carney M. Layne, for the claimant.
Thomas P. O’Brien, Jr., Assistant Attorney General, and 7iieodore L. Shreve, for the respondent.
Jones, Judge:
The claim of State Construction, Inc., against the State Road Commission in the
total amount of $296,308.28 arises out of a highway construction project in
Wayne County and comprises three items as follows: 2,148.24 cubic yards extra
quantity of bituminous treated aggregate base course at the bid price of $6.40
per cubic yard, totaling $13,748.74; 32,954.85 gallons extra quantity of
bituminous material at the bid price of 18c per gallon, totaling $5,931.87; and
extra cost for overrun of unclassified excavation, which was allowed in the
final estimate at the bid price of 90c per, cubic yard, and for which the
claimant ‘contends that under the contract specifications it was entitled to a
supplemental agreement with an increased cost price of $3.02 per cubic yard,
plus 15%, or a total increase for this item of $276,627.67.
The bituminous treated aggregate base course and the bituminous material mixed
therewith was processed in accordance with a “job mix” formula called fo in the
specifications. This formula had not been used before on a project requiring
the maintenance of traffic during construction and it turned out badly. It
developed that it took approximately seven days for the material to cure, set
and harden, and it was continually damaged by traffic and had to be worked and
reworked. The most severe damage was caused by heavy trucks hauling paving
materials to an adjoining State Road Commission project. The Commission refused
to provide for the detour of these trucks for the apparent reason that a longer
haul would result and would require additional compensation to the other
contractor.
W. VA.]
REPORTS STATE COURT OF CLAIMS 237
The extreme rutting and splashing of the uncured base course material was
clearly shown by photographs received in evidence. The State Road Commission
made allowance for reblading and rerolling and the covering force account work
order for costs of labor and equipment contained the following recital:
***to reblade and reroll Bituminous Treated Aggregate Base Course over entire
length of project. Reason for Force Account Work Order: Traffic was maintained
through the entire project and after the placement of the Bituminous Treated
Aggregate Base Course, the material was disturbed by job traffic and heavy
trucks traveling to the adjacent project.”
However, no allowance was made for wasted material.
The Court is of opinion that the large overrun of bituminous treated aggregate
base course and bituminous material was due to a combination of circumstances
which were or should have been within the control of the State Road Commission.
The contention of the Commission that the excess quantities must have resulted
from extra thickness of the base course is not a persuasive defense in view of
the fact that it established and set the elevations and supervised the laying
of the material. There is no showing that either party anticipated the long
curing time required by the experimental “job mix” specification or the
extremely heavy traffic occasioned by the adjacent road project, and there is
no doubt that these factors were burdensome and damaging to the claimant. The
quantities of the materials delivered to the project were not questioned by the
Commission; and the contract was let on the basis of a unit bid price for
estimated quantities of these materials. Based on the foregoing findings, the
Court is of opinion that the amounts claimed for extra materials are just and
reasonable and should be allowed.
The claim for overrun of unclassified excavation was the result of several
landslides which occurred in the work area and created a hazardous situation,
requiring emergency operations. These slides endangered the tracks of the
Norfolk & Western Railway and the public highway, and substantial extra
equipment and personnel had to be rushed to the project. Much of the work was
performed under adverse conditions and pres
238 REPORTS STATE COURT OF CLAIMS [W. VA.
sures not contemplated by the
contracting parties. The landslides and their troublesome consequences
continued for several weeks. The estimated planned quantity of unclassified
excavation was 322.700 cubic yards, ad the overrun was 113,584 cubic yards, or
approximately 35 per cent. The applicable provisions of the Standard
Specificalion controlling this situation are as follows:
“1,4.2 INCREASED OR DECREASED QUANTI TiES The Commission reserves the right to
make alteration in the Plans or in the quantities of work as may be necessary,
either before or after the beginning of work under the contract, to insure
completion of the work. Such alterations shall not be considered as a waiver of
any conditions of the contract nor invalidate any of the provisions thereof,
provided such alterations do not decrease or increase the total cost of the
project more than twenty-five per ce.t, based on the original contract
quantities and the unit bid prices, and prorided further that such alterations
do not result in an increase or decrease of more than twenty-five per cent in
quantity of any one major contract item. When alterations are made in excess of
those herein specified, then either party to the contract, upon written demand,
shall be entitled to a revised contract consideration to be fixed and agreed
upon in a written supplemental agreement, covering the necessary changes,
executed between the contracting parties.***
“In the event the Engineer and the contractor are unable to arrive at a mutual
agreement, the contractor may have the option either of proceeding with the
work and receiving payment therefor, in an amount determined by the Engineer as
the reasonable direct cost of the material and labor furnished by the
contractor, in the manner and amount as hereinafter prescribed in Article 1.4.4
for Extra work; or of permitting the work necessary to be done at the time and
in the manner deemed most expedient by the Commissioner.
“A major item shall be defined as any item whose total cost is equal to or
greater than ten per cent of the total original contract cost.***
“1.4.4 EXTRA WORK: When so ordered in writing by the Engineer, the contractor
shall furnish material and do extra work not otherwise provided for in the
Plans and Specifications. Extra work shall be done in a workmanlike manner in
accordance with the Plans and these Specifications. Payment therefor shall be
W. VA.]
REPORTS STATE COURT OF CLAIMS 239
made at unit
prices to be agreed upon by the contractor and
the Commission before the work is begun and as hereinafter provided. If prices or compensation
for extra work be not agreed upon, the Commission may order the contractor to
do the work and payment shall be made therefor at its actual reasonable cost to
the contractor, as determined by the Engineer, plus the percentages as provided
for in Article 1.9.4 of these Specifications. * * *
“1.9.4 EXTRA AND FORCE ACCOUNT WORK:
Extra work ordered and accepted shall be paid for under a Supplemental
Agreement as provided in Article 1.4,2, or Force Account, as agreed upon and
herein provided.***’
The overrun exceeding 25 per cent on a major item of the contract, negotiations
toward a supplemental agreement were initiated as removal of the slides
continued. There was a tentative agreement on a figure of 1.50 per cubic yard,
but the State Road Commissioner contended that the claimant had not furnished
sufficient proof of additional costs to support such a payment. Whether such
proof was forthcoming prior to the hearing of this claim is uncertain, but the
Court is of opinion that the proof offered by the claimant at the hearing did
substantiate a charge of $1.50 per cubic yard for additional unclassified
excavation, but not a higher figure as claimed. Therefore, the Court finds that
the claimant is entitled to payment for this item on the basis of 113,584 cubic
yards at the additional price of 60c per cubic yard or $68,150.40.
Accordingly, the Court is of opinion that the items of this claim which the
Court has hereinabove found should be allowed. are fair and reasonable and in
equity and good conscience should be paid and the claimant, State Construction,
Inc., is hereby awarded the sum of 87,823.61 against the State Road Commission.
240
RPORTS STATE COURT OF CLAIMS [W. VA.
Opinion issued April 15, 1969
ROBERT VINCENT
vs.
STATE ROAD COMMISSION
(No. D-127)
Claimant appearing in person.
Thomas P. O’Brien, Jr., Assistant Attorney General, and Robert R. Harpold, Jr., Esq. for the State.
Ducker, Judge:
Claimant, Robert Vincent, a resident of Gooslin Bottom, Freeburn, Kentucky, and
the owner of a 1963 Fairlane, Ford automobile, claims damages in the sum of
$181.08 to his automobile caused by a rock falling from a cliff along side a
newly constructed by-pass or cut-off road adjacent to State Route 49, at or
near the town of Thacker, in Mingo County, West Virginia, on or about September
6, 1968.
The facts are undisputed and are substantially in the following statement.
Claimant’s wife, Phyllis Vincent, and a neighbor, Virginia Gooslin of Freeburn,
Kentucky, were en route in claimant’s car, with the latter driving, from
Freeburn to Williamson, West Virginia, on West Virginia State Route 49 to take
the latter’s daughter to a hospital, when after being given a sign by a Road
Commission flagman on the road to proceed, the car was driven over the by-pass
road constructed along the hillside adjacent to Route 49, and while being so
driven rocks fell from the hillside upon the car damaging it to the extent of
the amount of said claim.
Two cars were ahead of claimant’s car at the place of accident and several cars
behind it, but none of them were struck by any falling rocks. It was admitted
by the Road Commission that the latter had been doing blasting On the hillside
some half hour before the rocks fell. The amount of the damage is not denied.
W. VA.] REPORTS
STATE COURT OF CLAIMS 241
With the clearance to pass given to the driver of the car and the cause of the
damage being uncontradicted, we are of the opinion that the claimant is
entitled to recover the amount of his claim, and accordingly we award him the
sum of $181.08.
Award of $181.08.
Opinion issued January 27, 1969
PRINCE A. WILLIAMS
V.
STATE ROAD COMMISSION
(No. D-87)
Claimant appearing in person.
Larry L. Skeen, Assistant Attorney GeneraL and Robert R. Harpold, Jr., Esq. for the State.
Ducker, Judge:
The claimant, Prince A. Williams, was the owner of a 1954 Chevrolet pickup
truck, which on May 1, 1968 he parked on the State Road Commission’s Mercer
County headquarters lot. While claimant’s car was so parked, Carl Whitt, an
employee of the State Road Commission operating a 1959 Warner Swasey Grade-all
ED35-5, lost control of the same on account of a failure of the brakes thereon
permitting the Grade-all to drift into claimant’s truck, and damaging the side
thereof and costing claimant a repair bill of $88.20.
The evidence is undisputed that the truck was lawfully parked, the repair bill
reasonable, and that the damage was occasioned by an employee of the Road
Commission operating a machine that had a brake failure, and consequently, we
are of the opinion that the claimant is entitled to, and we hereby make, an
award to him in the sum of $88.20.
Award of $88.20.
242 — REPORTS STATE COURT OF CLAIMS [W.VA.
Opinion issued November 8, 1968
ROBERT LEE POWERS, ADMINISTRATOR OF
THE ESTATE OF ROBERT LEE POWERS, JR.
vs.
WEST VIRGINIA BOARD OF EDUCATION
(No. D-59)
No appearance by Claimant.
Thomas P. O’Brien, Jr., Assistant Attorney General, for the State.
Ducker, Judge:
The claimant, Robert Lee Powers, Administrator of the Estate of Robert Lee
Powers. Jr., deceased, claims damages in the sum of $15,000 by reason of the
death of said decedent in a school building in the City of Chester, Hancock
County, West Virginia, on March 4, 1966, the petition alleging such claim
having been filed in this Court on February 20, 1968.
The facts appear to be that the decedent, a nine and a half year old pupil
attending the school operated by the Board of Education of Hancock County, was
negligently permitted to congregate, play and await bus transportation with
others at the rear of the school building without watchful care and control by
the school authorities, and that while there decedent fell into a concrete
stairwell at such rear building place and sustained cerebral injuries,
including skull fractures, from which he died. Claimant alleges that the school
authorities were negligent in failing to install adequate safeguards such as a
high fence around the outer perimeter of said concrete stairwell and that they
were negligent in failing to have adequate personnel in attendance for the
proper supervision, care and control of pupils at the rear of said school
building, particularly at the time when pupils were yet on the school premises
awaiting school bus transportation to their homes, and that they were negligent
in allowing and permitting the schoool premises to be and remain in an
allegedly extremely dangerous and hazardous condition.
W. VA] REPORTS
STATE COURT OF CLAIMS 243
The Attorney General filed a written motion to dismiss the claimant’s petition
on the ground that the Court lacked jurisdiction to hear the claiiv, and when
the case was called on the day set for a hearing, the Attorney General then
also moved that by reason of the failure of the claimant either in person or by
counsel to appear, that the case be dismissed on the ground of non-appearance
by claimant.
As is hereinafter shown, it is unnecessary for this Court to pass
upon the lal ter motion, although it would be sufficient ground to dismiss the
claim.
The written motion of the Attorney General to dismiss the claim en the basis of
lack of jurisdiction, cites Chapter 14, Article 2, Section 3 of the Code of
West Virginia, which in designating the jurisdictional powers of this Court in
regard to claims against State agencies specifically provides:
“* *
* that a ‘State agency’ shall not be
considered to include county courts, county boards of education,
niunicipalities, or any other political or local subdivision of the State
regardless of any State aid that might be provided.”
The facts show that it was the Board of Education of Hancock County which
exclusively had control and operation of the school where decedent suffered the
injuries resulting in his death. There are no allegations, claim or proof that
the State had any control or management of the school property involved.
Clearly the case involved only the property and employees of the Hancock County
Board of Education.
As the claim fails within the above express provision exeluding claims which
are against county boards of education. we are of the opinion to and do sustain
the motion of the Attorney G’nerai and dismiss this claim and make no award to
claimant herein.
Claim Disrnssed.
No award.
REFERENCES
AERONAUTICS COMMISSION
A claim by the executive director of
the State Aeronautics Commission for accrued annual leave was disallowed on the
ground that claimant was an appointive officer and not such a State employee as
was entitled to leave pay under the provisions of the Rules and Regulations of
the Board of Public Works of West Virginia. Parrish v. State
Aeronautics Com?a’n
(No. C-]8). 89
AIR CARRIERS
Claimant was awarded the sum of
$512.91 for air transportation furnished to employees of the Department of
Finance and Administration while such employees were on official business for
the State. United Air Lines, Inc. v. Department of Fin. &
Admin. (No. D-61). -
- 167
AIRPORTS
Airport authorities, which are
separate creatures of the State, w:ith grants of power from the State, are not
“agents” of the State. City of Morgantown v. Board of Governors of
West Virginia University (No. D-46) 174
Claimant city was awarded $150, such sum representing unpaid rent for hangar
space used by the National Guard at claimant’s municipal airport. City of
Morgantown v. State
Adjutant General (No. C-7). - 79
ALCOHOLIC BEVERAGE CONTROL COMMISSION
Claimant, whose trip to Europe for the
purpose of participating in a joint liquor administrators study conference had
been approved by the governor but not by the Board of Public Works as required
by the Board’s regulations, was awarded the sum of $803.79 as reimbursement for
travel and hotel expenses, where it was stipulated that the trip was undertaken
for and on behalf of the State and in conjunction with claimant’s official duties
and that claimant had acted in good faith in relying upon the governor’s
approval and permission. Elmore v. Alcoholic Beverage Control Comm’r (No.
D-29). 97
AMENDMENT
Where a claim was originally filed in
the name of Russell Collins, but thereafter, because of a question of ownership
of the damaged property, an attempt was made to amend the claim by substituting
the name of David Griffey as the claimant, and upon the taking of testimony, it
became apparent to the Court that Collins was the true claimant, it was held
that any claim which Griffey might have should be disallowed, and consideration
was given only to the claim of Collins. Collins v. State Road Comm’n (No.
B-384) 41
[245]
246 REPORTS STATE
COURT OF CLAIMS W. VA.
APPROPRIATIONS
(laitnant, v hose charges for printing
5.000 books for the Dei artinerit of Health remained unpsid merely becaue its
bill hal mt been presented until after the close of the fiscal year and fuiid
were then unavailable, was awarded payment of its claim in the sum of $4,400. Biggs—Jol,stoim—Withrow
v.
Dcpurtin (‘of oj lieu lth ( No. B—393 ) . 36
Where the only appsrent reason for the denial by the State of claim I r el eel
rica 1 services and material furnished was a statutory provision prohibiting
the payment of claims incurred by State oflicers wjthuut any legislative
appropriation in the fiscal year for such ayment, the Court awarded claimant
the sum of $3,801.73, stating that while it did not wish to encourage or o
erride the statutory provision, it was of the opinion that the fault was SO chargeable to
the State oulicers in employing such services that the persoas employed should
not be denied fair compensation. See §
12-3-17, W. Va. Code.
Era inc v. State Road Co nmvi’im (No. C— 13). 80
ARCHITECTS
A claim for architectural services
performed under subcontract in connection with the West Virginia pavilion at
the 1964 New York Worlds Fair was supported by clear and convincing proof,
where claimant had been informed by letter from the State that termination of
the prime contract did not affect their position as architects of record for
the pavilion. Bowman v.
Department of Commerce (No. B-192). 5
ASSIGNMENTS
Claimant insurance company was awarded
the sum of $148.01 for damages sustained by its assignor when slag was thrown
from a State Road Commission truck onto the assignor’s automobile. State Farm
Mut. Auto, Ins. Co. v. State Road Comni’?m
(No. D-5). 102
ATTORNEYS
Claimant was awarded the sum of $1744
for legal services performed and costs advanced by him, where his employment by
the State Aeronautics Commission for the purpose of examining titles and
prosecuting condemnation suits had been specifically authorized in writing by
the Attorney General.
Phillips v. State Acron antics Comm ‘71 (No. D-48) . 121
Claimant, an attorney, was awarded $2,700 as compensation for services
performed in drafting certain legislation for the Department of Welfare for
presentment to the 1967 session of the West Virginia Legislature. McElwee v.
Department of
Welfare (No. D-34). 24
ATTORNEYS’ FEES—See Costs
BLASTING
Claimant, a State Road Commission
employee, was awarded $88.07 for damage to his automobile resulting from
blasting
W. VA.] REPORTS
STATE COURT OF CLAIMS 247
operations in which he participated, where the evidence showed that claimant
was inexperienced in such work and that the negligence of his fellow employee
was the direct cause of the damage. Albert v. State Road Coaiaj’n (No.
D-36). 124
Claimant was awarded the sum of $68.25 for damages sustained when a rock was
blown onto the top of his automobile as a result of blasting operations
conducted by employees of the State Road Commission. Brown v. State Road Cooim’n
(No. B-391). 15
Claimants were awarded the sum of $110.16 for damage to their residence
resulting from negligent blasting by a construction crew of the State Rend
Commission. Chamberlain v. Statc’
Road Comin’o (No. D—15). 116
Claimant railroad was awarded the sum of $212.01 for damages resulting from the
overturning of its coal car when blasting was done by employees of the State
Road Commission. Chesapeake & 0. Ry. v. State Road
Corvsm’o (No. D-86). 173
Claimant proved his claim by a preponderance of the evidence and was awarded
the sum of $453.10 for damage to his dwelling house resulting from blasting
operations conducted by employees of the State Road Commission. Collins v.
State
Road Cornm’n (No. B-384). 41
Claimant proved his case by a preponderance of the evidence and was awarded a
sum of $50 for damages to his parked automobile resulting from blasting
operations conducted by employees of the State Road Commission. Collins v.
State Road
Comm”o (No. B-385). 20
A claim for damages to the windshields of seven automobiles located upon
claimant’s used car lot, alleged to have been caused by blasting operations
conducted by employees of the State Road Commission, was disallowed, where
claimant failed to prove its claim by a preponderance of the evidence. Crowder
& Freeman, Inc. v. State Road Comm’n (No. B-378). 43
Claimant was awarded the sum of $100 for damages which occurred when employees
of the State Road Commission were blasting rock on a roadway above his dwelling
house, causing fragments and debris to fall on the roof. Deskins v. State
Road
Comm’n (No. D-131). 227
Claimant was awarded the sum of $23 for damages to his truck which occurred
when State Road Commission employees set off a blasting shot which caused a
rock to land on the hood of his vehicle. Dotson v. State Road Comm’n (No.
D-62). 152
Claimant proved his case by a preponderance of the evidence and was awarded the
sum of $87.55 for damages to his parked truck resulting from blasting
operations conducted by employees of the State Road Commission. Dotson v.
State Road
Comm’n (No. B-379). 22
Claimant was awarded the sum of $677.33 for damages to his automobile caused by
falling debris from blasting operations conducted by employees of the State
Road Commission. Federal Ins. Co. v. State Road Comm’n (No. D-9) 83
248 REPORTS
STATE COURT OF CLAIMS [W. VA.
Claimant was awarded the sum of $94.35 for damage to her automobile resulting
from blasting operations conducted by the State Road Commission. McKinney v. State Road Comrn’n (No.
D-103) 212
Claimant was awarded the sum of $45 for damages sustained when, as a result of
blasting operations conducted by employees of the State Road Commission, a rock
was blown through the windshield of his automobile. Wisecctrver V. State
Road Comrn’n (No. C-15) 78
Claimant was awarded the sum of $1450 for damages to his buildings resulting
from negligent blasting by the State Road
Commission. Wood v. State Road
Comm’n (No. B-394) 31
BRIDGES—See also Damages
A total award of $11,151.12 was
allowed for losses incurred by claimant and claimant’s subcontractor as a
result of delays caused by the State Road Commission in connection with a
bridge construction contract. Baker
& Hickey Co. v. State Road
Comm’n (No. D-95) 195
Claimant was awarded $30.90 for damages to his automobile
caused by gravel and cinders dropping on the vehicle while
the State Road Commission was cleaning drainpipes on a
bridge. Calhoun v. State Road
Comm’n (No. B-387) 37
Where claimant, who was awarded a contract by the State Road Commission to
construct a bridge, moved certain equipment onto the project site, and such
equipment was irnmobilized for a six-week period due to a work shutdown
occasioned by the necessity for redesigning one of the bridge piers, claimant
was entitled to recover the sum of $9713.78 for loss of the use of its
equipment during the time the project was shut down. Charleston Concrete Floor Co. v. State
Road Comm’n
(No. D-6) 104
Claimant was awarded $14,500.02 for losses sustained on several bridge
construction contracts by reason of having to pay higher wage rates following
delays caused by the State Road Commission. Charleston Concrete Floor Co.
v. State Road Comm’n (No. B-297)
Claimant, whose automobile was damaged when a piece of black top floor fell out
of a bridge while he was crossing, proved his case by a preponderance of the
evidence and was awarded the sum of $70.15. Clark v. State Road Comm’n (No. B-397). 40
Claimant was awarded the sum of $4,033.76 for extra cost incurred in
pre-drilling for steel piles to support a bridge over an interstate highway. J. C. Haynes v.
State Road Comin’n
(No. D-18) — 208
Claimant was awarded the sum of $67,288.99 for work and labor performed and
materials furnished in the placement of a bridge deck, such sum having been
reduced by the Court to reflect a reduction of the business and occupation tax
rate for contractors from 2.6% to 2%. Mountain
State Constr. Co. V.
State Road Comm’n (No. B-338) 10
W. VA.] REPORTS
STATE COURT OF CLAIMS 249
The State Road Commission’s failure to have road markers indicating a one-way
bridge does not constitute negligence.
Thompson v. State Road Comm’n (No. C-9) 75
Pictures of a bridge and approaches introduced in the evidence clearly showed
that neither the bridge nor the road were out of repair and that the collision
in which claimant’s wife was killed would not have taken place had the parties
to the collision exercised reasonable and proper care under the circumstances. Thompson
v. State Road Comm’n (No. C-9). 75
CONTRACTS
Claimant, who alleged that the State Road
Commission had appropriated and converted to its own use pipe which claimant
had supplied to a highway contractor, had the right to waive the tort and to
sue on a contract implied by the facts within the five-year statute of
limitations. Armco Steel Corp. V.
State
Road Comm’n (No. D-30) -
33
While the Court of Claims looks with disfavor on state contracts which are not
authorized and executed according to statutory and budget requirements, it does
not approve of unf air and unjust enrichment by the State in dealings which its
officers have made in taking property and labor of others in Proj ects in which
the State has benefited. Greene v. State Road
Comm’n (No. D-32) 155
The authority of a public officer to enter into contracts is defined by law and
the Legislature may not authorize the payment of a claim created against the
State under any contract made without express authority of law. See art. VI, §
38, W. Va. Const. Mountain State Consultants,
Inc. v. State (No. D 100 10
Claimant, who entered into a road-building contract with the State Road
Commission, was chargeable with knowledge that it was dealing with a
governmental agency, with employees and agents whose duties were defined by law
and who had limited powers to contract for cost items not clearly made a part
of the contract. Nello L. Teer Co. v. State Road Comm’n
(No. D-89) 216
A citizen, relying upon the ability of and confidence in a public official and
expending large sums of money to comply with a purported contract, should not
in good conscience be deprived of his property, especially where the State has
had full value in the matter. Rahall Realty Co. v. Department of
Welfare (No. D-90) —
225
Where claimant agreed to permit the State to dump
refuse on his property in exchange for improved maintenance of a state road,
respondent’s pre-existing obligation in law to maintain the road was not legal
consideration for such a contract.
Smith v. State Road Comm’n (No. D-2) 141
Claimant’s building renovation contract with the Commissioner of the Department
of Welfare was valid, notwithstanding the fact that such contract had not been
approved by the Attorney General as required by statute, where the evidence
clearly established ratification of the Commissioner’s acts,
250 REPORTS STATE
COURT OF CLAIMS [W. VA.
the State having accepted the benefits of the work done and materials
furnished, and there having been no dispute as to the amount of work done and
materials furnished, the quality of materials or workmanship, or the amount of
the aggregate claim. See § 5A-3-l5, W. Va. Code. W. A. Abbitt Co. v.
Departmeat of Welfare (Nos. C-37, C-36, C-38, C-39, C-40, C-41, C-42,
C-43). 62
CORPORATIONS
A claim for a refund of fees paid by
claimant in connection with the incorporation and subequent dissolution of a
corporation or1anized by him was disallowed, where liability on the claim had
been totally denied by respondents on the basis that the fees paid were not
refundable under the statute and were not collected upon the contingency of the
claimant’s success in obtaining a permit to sell the shares of the capital
stock of the corporation or upon any other contingency. See § 32-1-6, W.
Va. Code. McCozj v. Sccretarq of State (No. D-54). 159
The corporate entity will be disregarded where it is used to cloak or cover the
circumvention of a statute. Mountain
State
Consaltavts, Inc. v. State (No.
D-l00). 213
The fiction of a corporation will be disregarded by the courts if the
corporation is formed to accomplish an illegal act, and the parties will be
dealt with as though no corporation was
formed. Mountain State Con.sultants,
Inc. v. State (No.
D—100) 213
The Workmens Compensation Commissioner had no statutory power to engage an
independent consultant who was not an employee of the State, and the use of a
corporate entity to shield the reemployment of a former employee after he had
reached the mandatory retirement age was in violation of the Compulsory
Retirement Age Act. See former § 5-14-1 to 5-14-5, W. Va. Code. Mountain State Consultants. Inc. v. State
(No. D-100). 213
COSTS
Where claimants, who were State Road
Commission mechanics and as such had worked on the brakes of a truck involved
in a fatal accident, were brought into litigation by the Commission’s insurer
and were obligated to have counsel f or their defense, it was held that they
were entitled to recover counsel fees in the amounts of $759 and $859, which
the Commission had refused to pay. Robbins
v. State Road Coinm’n (No.
B-320(A) ). . . . 51
DAMAGES
Where claimant sought $1,000 for
damage resulting from the passage of a State bulldozer over his leased
premises, allegedly destroying three rows of strawberry plants and “covering
up” a “setting” hen and her eggs, but claimant declined, or was unable, to even
state the cost of his strawberry plants or his hen, the court exercised its
statutory investigative powers to arrive at some reasonable value for these
items and awarded him the
sum of $25. Akers v State Road Comm’n (No.
D-65). -
. 127
W. VA.] REPORTS
STATE COURT OF’ CLAIMS 251
A claim for damages alleged to have resulted from negligent and unauthorized
surgery performed at Fairmont Emergency Hospital was denied, where evidence
indicated the possibility of a mix-up in the hospital records or in the
identity of patients, where the medical testimony was not sufficient to support
the subjective symptoms and complaints, and where the damages sought to be
proved were highly speculative. Blondheirn v. Department of Pub. Inst;tutwns (No. D-37).
170
Damages to claimant’s business and the loss of future profits were too remote
and specu(ativc to deerve serious consideration. Covanaugh Land,capir’g Co.
v. Department of Natural
Resources (No. D-77). 200
Liquidated damage clause.; are generally enforceable when sub-,tantial damages
have resulted. J. I. Hass Co. v. State Road
Coinm’n (No. D-109). 209
Where highway traffic was not seriously interrupted or inconvenienced and no
substantial pecuniary loss was suffered by the State or the public by a delay
involving a controversy between claimant and the State Road Commission over the
quality and application of paint on a bridge, such controversy was an
extenuating circumstance which made enforcement of a liquidated damage clause
harsh and unjustifiable. J. I.
Hass Co. v State Road Comm’n (No. D-109). 209
Items of damage which were vague and speculative in nature could not be
allowed. Lewis v. Department of Pub.
Institutions (No. D-73). 192
DRAINS
Where the State Road Commission’s negligent maintenance of a drain, coupled
with the overflow of water unable to pass through it, damaged claimant’s bottom
land, and his allegations of damages in the amount of $700 were unsubstantiated
by the evidence, claimant was awarded the sum of $100 which he had expended for
fertilizer, seed and labor in an effort to
recondition his land. Beasley v. State Road Comm’n (No. C-21) 110
A claim for damage to a dwelling house resulting from a flow of water over
claimant’s property after a heavy rainfall was disallowed, where the evidence
showed that such damage was due to the natural drainage of the area and other
intervening and superseding causes and was not directly attributable to the
neglect of the State Road Commission in keeping
its culvert open. Hammack v. State Road Comrn’n (No. D-83). 182
A claim for damage done to claimant’s furnace as a result of water drainage
from an interstate highway was disallowed, where claimants failed to show in any
degree of certainty or accuracy that the drainage of the area had been changed
or, if there had been a change in drainage, that such change caused the damage
to their furnace. Harrison v. State Road
Com?a’n (No. D-22). 156
ELECTION OF REMEDIES
Claimant, who alleged that the State Road Commission had appropriated and
converted to its own use pipe which claimant had supplied to a highway
contractor, had the right to
252 REPORTS
STATE COURT OF CLAIMS [W. VA.
waive the tort and to sue on a contract implied by the facts within the
five-year statute of limitations. Armco
Steel Corp.
v. State Road Comm’n (No.
D-30) 33
ELECTRICITY
Where the only apparent reason for the
denial by the State of a claim for electrical services and material furnished
was a statutory provision prohibiting the payment of claims incurred by State
officers without any legislative appropriation in the fiscal year for such
payment, the Court awarded claimant the sum of $3,801.73, stating that while it
did not wish to encourage or override the statutory provision, it was of the
opinion that the fault was so chargeable to the State officers in employing
such services that the persons employed should not be denied fair compensation.
See § 12-3-17, W. Va. Code. Frame V.
State
Road Comm’n (No. C-13). 80
Claimant was awarded the sum of $53.34 as compensation and payment to it for an
electric motor supplied and installed in Pinecrest Sanitarium at the request of
the Department of Public Institutions. Reliance
Elec. & Eng’r Co. v. Department
of Pub. InstitutioTzs (No. D-31)
91
ELEVATORS
Claimant was awarded the sum of
$426.61 for services performed under contract for the maintenance of elevators
in the State Capitol. Otis Elevator Co.
v. Department of Fin. & Admin.
(No. D-81). - - -- - - -- 167
EMINENT DOMAIN
The State Road Commission may be
compelled by mandamus to institute condemnation proceedings to determine
damages to real estate and compensate property owners. Such an action is not a
suit against the State in contravention of article VI, section 35, of the State
constitution. Johnson v. State Road
Comm’n (No.C-3) 186
A claim for interest upon a judgment and award in a condemnation suit was
disallowed, where payment had been made before the enactment of a statutory
notice requirement and the evidence did not support claimant’s allegation that
such payment had been intentionally or negligently concealed by the
respondent. Roberts v. State Road
Comm’n (No. D-8). 108
EQUITY
While it is generally the duty of the
Court of Claims to base its findings against the State on grounds which would
have been valid against an individual, the Court nevertheless has the duty to
weigh the equitable situation, particularly where the legal remedy may be insufficient.
Owens v. State Road
Comm’n (No. D-134) 223
EVIDENCE—See also Witnesses
Preponderance of evidence means
sufficient evidence of such quality as to prevail. Cephas v. Department of Pub. Institu tion (No. D-57) 149
W. VA.]
REPORTS STATE COURT OF CLAIMS 253
Claimant, who alleged that penitentiary officials willfully and negligently
failed and refused to provide him with adequate and proper medical treatment,
was not an expert capable of testifying as to what was or was not the proper
treatment in his case. Cephas v. Department of Pub. Institutions
(No. D-57) 149
It is the duty of the Court of Claims, and the Court has the authority, to
scrutinize documentary evidence very closely.
C. E. Wetherall v. State Road Comm’n (No. C-24) 133
Where there was some conflict in the evidence as to the color of material in
the berm of the road at the place of an accident which occurred on November 9,
1966, the testimony of a State’s witness was corroborated by pictures of the
road taken subsequently in January of 1967, there having been little likelihood
that any substantial change in the color of the road and the berm could have
occurred. Federico v. Sawyers (No.
C-20) 153
There must be some evidence to sustain respondent’s position where the claimant
has made a clear prima facie case for relief. Mountain State Constr. Co. v.
State Road Comm’n
(No. B-338) 10
It is not incumbent upon the respondent to prove a defense to a claim by a
preponderance of the evidence. Mountain State
Constr. Co. v. State Road Comm’n (No. B-338) 10
Being triers of the facts as well as judges of the applicable law, the Court of
Claims must reach its decision on the substance as well as on the details of
the evidence introduced.
Oscar Vecellio, Inc. v. State (No. B-339) 47
The lack of written change orders or supplemental agreements in writing in
which the State Road Commission agreed to recognize and pay for claims in
connection with a highway construction contract was a material, if not fatal,
defect in the
proof. Oscar Vecellio, Inc. v. State (No. B-339). 47
FELLOW SERVANTS
Claimant, a State Road Commission
employee, was awarded $88.07 for damage to his automobile resulting from
blasting operations in which he participated, where the evidence showed that
claimant was inexperienced in such work and that the negligence of his fellow
employee was the direct cause of the
damage. Albert v. State Road Comrn’n (No. D-36) 124
FOOD
By statute, the interest claimed on an
account for produce sold and delivered by claimant to an FFA and FHA camp under
the supervision of the Division of Vocational Education of the State Department
of Health could not be allowed, despite allowance of the principal claim. C.
A. Robrecht Co. V.
Department of Education (No. D-1OA) 125
Claimant was awarded the sum of $464.41 for frozen foods sold and delivered to
an FFA and FHA camp under the supervision of the Division of Vocational
Education of the State De
254 REPORTS STATE
COURT OF CLAIMS [W. VA.
partment of Health; however, interest on the claim was disallowed. C. A.
Robrecht Co. v. Department of Education (No.
D-1OB). .
126
Claimant was awarded the sum of $135.96 for fresh fruits and vegetables
supplied and delivered, per order, to Lakin State Hospital Commissary. C. A.
Robrecht Co. v. Department
of Mental Health (No. D-12). . 131
Claimant was awarded the sum of $170.78 for frozen foods and other vegetables
delivered to the Lakin State Hospital.
C. A. Robrecht Co. v. Department of Mental Health (No. D-11). 68
Claimant was awarded the sum of $83.75, excepting interest, for produce ordered
by the Department of Mental Health and delivered by claimant to the West
Virginia Training School.
C. A. Robrecht Co. v. Department of Mental Health (No. D-14). 111
GARBAGE
Claimant was awarded the sum of $2,400
for the use of his dump by the State Road Commission. Smith v. State
Road
Cornm’n (No. D-2). .
141
GOLF COURSES
Claims for additional work and expense
in connection with the construction of four golf courses could not be paid,
where the work was done without required change orders and without proof of
extra work or demand for extra compensation. Cavanaugh Landscaping Co.
v. Department of Natural Re source (No. D-77). 200
HOSPITALS
A claim for damages alleged to have
resulted from negligent and unauthorized surgery performed at Fairmont
Emergency Hospital was denied, where evidence indicated the possibility of a
mix-up in the hmpital records or in the identity of patients, where the medical
testimony was not sufficient to support the subjective symptoms and complaints,
and where the damages sought to be proved were highly speculative. Blondheim
v. Department of Pub. Institutions (No. D-37). 170
Claimants, employees at Spencer State Hospital, were awarded a total amount of
$1,600 for “ofT-duty” professional services rendered in connection with a
follow-up program for the treatment of alcoholic patients after their discharge
from
the hospital. Byrd V.
Department of Mental Health (No. D-35). 129
A claim for injury and disfigurement due to the negligence of a physician and
hopita1 in treating claimant’s injured arm was disallowed, where there was no
direct evidence that the non-union of the claimant’s fracture was proximately
caused by the negligence of the hospital. Short v. Welch Emergency
Hasp. (No. B-375) .
28
INSURANCE
Where claimant’s total damages
resulting from a collision with a State Road Commission vehicle amounted to
$7,853.37,
W.VA.]
REPORTS STATE COURT OF CLAIMS 255
and the Commission had negotiated a partial settlement with its insurer in the
sum of $5,000 (the limit of its policy), claimant was awarded the amount of his
claim—$2,853.37. Ans line V.
State Road Comrn’n (No. B-369)..... 31
Claimant insurance company’s claim for damages sustained when its insured’s
automobile struck rocks and boulders in the road was disallowed, where there
was insufficient evidence to establish any negligence on the part of the State
Road Commission. State Farm Mut. Auto.
Ins. Co. v. State Road Comrn’n
(No. B-381). 54
Claimant insurance company was awarded the sum of $24.81. where it had been
subrogated to the rights of its insured, whose automobile was damaged when an
employee of the State Road Commission, patching holes in the surface of the
highway and chipping the concrete therein, caused a stone chip to strike the
windshield of the automobile, after the insured had been directed by a
flagman to pass the place of the work. State
Farm Mut. Auto. Ins. Co. v. State Road
Corn n’n
(No. B-390). 55
Claimant insurance company was awarded the sum of $148.01 for damages sustained
by its assignor when slag was thrown from a State Road Commission truck onto
the assignor’s automobile. State Farm
Mut. Auto. Ins. Co. v. State
Road Corn?n’n (No. D-5). . 102
Claimant insurance company was awarded the sum of $36.05 for damages to its
assured’s automobile caused by overspray from paint guns operated by employees
of the State Road Commission. State Farm
Mut. Auto. Ins. Co. v. State Road
Conim’n (No. D-52). .. - . 123
A claim for collision damages suAained when an automobile, the rights of who.e
owner had been subrogated to claimant insurance company, was stolen by an
escaped prisoner was disallowed, where the fact that such prisoner, a trusty,
was able to obtain liquor and become intoxicated, prior to leaving a prison
chicken farm, was not sufficient to attribute negligence to the prison
officials, and any alleged failure on their part was not shown to be a
proximate cause of the prisoner’s acts. State
Farn Mut. Auto. Ins. Co. v. Department of Pub. Institutions
(No. D-55). . - 146
INTEREST
By statute, the interest claimed on an
account for produce sold and delivered by claimant to an FFA and FHA camp under
the supervision of the Division of Vocational Education of the State Department
of Health could not be allowed, despite allowance of the principal claim. C. A. Robrecht Co. v.
Department of Education (No. D-1OA). - .. . 125
Claimant was awaded the sum of $464.41 for frozen foods sold and delivered to
an FFA and FHA camp under the supervision of the Division of Vocational
Education of the State Department of Health; however, interest on the claim was
disallowed. C. A. Robrecht Co. v. Department
of Education
(No. D-1OB) . .. - .. . 126
256 REPORTS STATE
COURT OF CLAIMS -
[W. VA.
Interest cannot be allowed under the statute in any case unless the contract in
the matter expressly provides for the payment of interest. C. A. Robrecht Co. v. Department of Mental
Health (No. D-11) 68
The fact that claimant’s invoices contained a printed statement that six
percent interest would be charged on “past due accounts” was not sufficient to
satisfy the statutory requirement that the contract under which the goods in
question were supplied provide for the payment of interest. See § 14-2-12, W.
Va. Code. C. A. Robrecht & Co. v. Department
of Mental
Health (No. D-12) 131
Ciaimant was awarded the sum of $83.75, excepting interest, for produce ordered
by the Department of Mental Health and delivered by claimant to the West
Virginia Training School.
C. A. Robrecht Co. v. Department of Mental
Health (No. D-14). 111
A claim for interest upon a judgment and award in a condemnation suit was
disallowed, where payment had been made before the enactment of a statutory
notice requirement and the evidence did not support claimant’s allegation that
such payment had been intentionally or negligently concealed by
the respondent. Roberts v. State Road Comm’n
(No. D-8). 108
JURISDICTION
The statutory definition of “state
agency” clearly limits such an agency to one which is in the true sense an
officer or servant of its master, the State, and not one which acts as an
independent principal. See § 14-2-3, W. Va. Code. City of Morgantown v. Board of Governors of West Virginia Uni versit (No. D-46) 174
The Board of Governors of West Virginia University, which functions entirely
separately and independently of any control by the State, is not truly an
administrative state agency for whose liabilities the Court of Claims should
determine whether in equity and good conscience the State should pay. City of Morgantown V. Board of Governors of West Virginia
Univer sit (No. D-46) 174
The right to defend and escape liability by invoking the doctrine of immunity
because of the exercise of a governmental function by a city or county or by
West Virginia University does not of itself make such city, county, or
university an agency of the State. If that were the case, every legal action
against any city or other state incorporated body in which there is sustained a
governmental function plea of immunity from liability would come within the
jurisdiction of the Court of Claims under the agency theory. City of Morgantown v.
Board of Governors of West Virginia
University, (No. D-46). 174
Section 14-2-13, W. Va. Code, extends the jurisdiction of the Court of Claims
to claims which the State as a soverign commonwealth should in equity and good
conscience discharge and
pay. Elmore v. Alcoholic
Beverage Control Comm’r (No. D-29). 97
Where mandamus proceedings could be maintained against the State by claimants
who contended that their properties
W.VA.] REPORTS
STATE COURT OF CLAIMS 257
had been damaged as a direct result of highway construction and maintenance, it
was clear that their claims came within the jurisdictional prohibition set out
in § 14-2-14(5), W. Va.
Code. Johnson v. State Road Comm’n (No. C-3) 186
The Court of Claims is not to be substituted for courts which have jurisdiction
to hear an appeal from, and if necessary overrule, a decision of the
commissioner of securities. McCoy
v. Secretary of State (No. D-54) 159
A claim alleging negligence on the part of school officials resulting in the
death of a pupil was disallowed on the ground that such claim fell within the
statutory provision excluding claims against county boards of education, where
there were no allegations or proof that the State had any control or management
of the school property involved. See §
14-2-3, W. Va.
Code. Powers v. Board of Educ. (No. D-59) 242
Section 14-2-13, W. Va. Code, extends the jurisdiction of the Court of Claims
to claims which the State as a sovereign commonwealth should in equity and good
conscience discharge and pay. W. A. Abbitt Co. v. Department of
Welfare (Nos. C-37, C-36, C-38, C-39, C-40, C-41, C-42, C-43) 62
LANDLORD AND TENANT
Claimant city was awarded $150, such
sum representing unpaid rent for hangar space used by the National Guard at
claimant’s municipal airport. City of Morgantown v. State
Adjutant General (No. C-7) 79
Claimant was awarded the sum of $40,500 as compensation for unpaid rent on a
building leased by claimant to the State for the use of the Department of
Welfare, where state officers were unable to compel a county court to provide
its share of the funds to pay the rentals as contemplated under the contract. Rahall
Realty Co. v. Department of Welfare (No. D-90). 225
LIMITATION OF ACTIONS
Claimant, who alleged that the State
Road Commission had appropriated and converted to its own use pipe which claimant
had supplied to a highway contractor, had the right to waive the tort and to
sue on a contract implied by the facts within the five-year statute of
limitations. Armco Steel Corp. v. State
Road Comm’n (No. D-30) 33
Claims against the State should not be allowed in any case where the
Legislature has decreed that such claims shall be barred after a specified
time. Bache & Co. v. State Tax Comm’n
(No. D-63) 168
A claim for a refund for overpayment of business and occupation taxes was
disallowed, where such claim had not been filed within the period of three
years provided in § 11-1-2,
W. Va. Code. Swisher v. State Tax Comm’r (No. C-li) 73
A claim for additional work and labor performed and materials furnished
pursuant to a well-drilling contract with the
258 REPORTS STATE
COURT OF CLAIMS [W. VA.
State Road Commission was properly considered by the Court
of Claims, where such claim had been pending before the
Attorney General at the time of the creation of the Court.
Warner v. State Road Commn (No. B-91). 24
LIVESTOCK
Claimant, owner of a farm located on a
state highway, was awarded the sum of $225 for the loss of cattle by poisoning
from weed spraying along such highway by the State Road
Commission. Tenney v. State Road Cornm’n (No. B-396). 59
MANDAMUS
The State Road Commission may be
compelled by mandamus to institute condemnation proceedings to determine
damages to real estate and compensate property owners. Such an action is not a
suit against the State in contravention of article VI, section 35. of the State
constitution. Johnson v. State Road
Co?nm’n (No. C-3). 186
MOTOR VEHICLES
Where claimant’s total damages
resulting from a collision with a State Road Commission vehicle amounted to
$7,853.37, and the Commission had negotiated a partial settlement with its
insurer in the sum of $5,000 (the limit of its policy), claimant was awarded
the amount of his claim—$2,853.37. Ansisne
v.
State Road Comm’n (No. B-369). 31
Claimant was awarded the sum of $68.61 for damages sustained when a rock truck
the windshield of his automobile after being thrown from a power lawn mower
operated by employees of the State Road Commission. Blankenship v.
State Road Comm’n (No. C-26). 66
Claimant was awarded $30.90 for damages to his automobile
caused by gravel and cinders dropping on the vehicle while
the State Road Commission was clearing drainpipes on a
bridge. Calhoun v. State Road Comm’n (No. B-387). 37
Claimant, whose automobile was damaged when a piece of black top floor fell out
of a bridge while he was crossing, proved his case by a preponderance of the
evidence and was awarded the sum of $70.15. Clark v. State Road Comm’n (No.
B-397). --
40
Claimants were awarded the sum of $2,106.71 for damage to their house and
automobile, where the sole cause of the damage was the defective condition of
the brakes on a State Road Commission truck which left the roadway and struck
claimants’ house and automobile. Curry v. State Road Comm’n
(No. C-2) 105
A claim for damages sustained when claimant’s truck overturned was disallowed,
where the evidence showed that claimant was negligent in allowing the wheels of
his vehicle to go off the paved portion of the road into the gully edge of the
wide berm when there was ample room in the paved portion of
the road. Federico v. Sawyers (No. C-20). -- 153
W. VA.l REPORTS
STATE COURT OF CLAIMS 259
The state is not an insurer of the safety of the roads and highways.
Harris v. State Road
Comm’n (No. D-76). 189
State Farm Mut. Auto. Ins. Co. v. State Road
Comm’n (No.
D-80). -
180
The failure of the State Road Commission to provide highway guard rails does
not create a moral obligation on the part of the State to compensate a person
for injuries assumed to have occurred through such failure. Harris v. State Road
Cornin’n (No. D-76). - - - 189
The State is not an insurer of its employees’ automobiles properly parked upon
State property and would not be liable for loss caused to such vehicles by
accidential fire, unless it failed to exercise ordinary care for the safety of the
property left in its keeping. Hott v. Department
of Natural Resources
(No. D-27). --
106
Claimant was awarded the sum of $52.53 for damage caused to his parked
automobile when a wheel came off a moving vehicle operated by the State Road
Commission and struck the side of claimant’s vehicle. Keith v. State Road Comm’n
(No. D-50). - -- - 137
Claimant was awarded the sum of $240 for damages sustained by his parked
automobile when it was struck by a truck operated by an employee of the State
Road Commission.
Matheny v. State Road
Comm’n (No. D-49). - - 158
Section 17C-8-8. W. Va. Code provides an additional requirement imposed upon
the driver of a forward vehicle attempting to make a left turn into a passing
lane other than merely giving the proper signal. The coorelative statute
requires the driver of a vehicle overtaking and passing another vehicle
proceeding in the same direction to give an audible signal and pass to the left
thereof at a safe distance. National
Rubber &
Leather Co. v. State Road Comm’n (No. C-I). 138
Respondent’s driver was guilty of negligence as a matter of law where he failed
to comply with the statutory requirement that one intending to make a left turn
must ascertain if it car’ be done with reasonable safety. See § 17C-8-8, W. Va. Code. Natioaal Rubber & Leather Co. v.
State Road Coinm’n (No.
C-i). --
138
Claimant recovered the sum of $125.73 for damages to his automobile which
occurred when the vehicle dropped into a hole in the road and hit a washedout
manhole cover, not readily visible, impaling the car and causing it to come to
an abrupt and violent stop, damaging the frame and other parts.
Neeley v. State Road
Comm’n (No. B-388) 45
Claimant and her insurer were awarded a sum of $104.31 for damages sustained by
claimant’s automobile as a result of the act of employees of the State Road
Commission in negligently felling a tree on such vehicle. Nickell V. State Road Comm’n
(No.D-4) 87
A claim for damages sustained when claimant’s automobile struck a rock on the
road was disallowed, where the evidence
260 REPORTS
STATE COURT OF CLAIMS [W. VA.
showed contributory negligence on the part of the driver of
claimant’s car. Oliver v. State Road
Comm’n (No. D-24) 144
Where claimants, who were State Road Commission mechanics and as such had
worked on the brakes of a truck involved in a fatal accident, were brought into
litigation by the Commissioner’s insurer and were obligated to have counsel for
their defense, it was held that they were entitled to recover counsel fees in
the amounts of $759 and $859, which the Commission had refused to pay. Robbins v. State Road Comm’n (No.
B-320 (A) ) --
51
Claimant was awarded the sum of $202.62 for damages sustained by her automobile
when tar splashed onto the painted surface of the vehicle as a result of
negligence on the part of State Road Commission employees. Robison v. State Road
Comm’n (No. D-119) 229
Claimants recovered $3,277.11 for personal injuries and damages to their
automobile arising out of a collision between their parked vehicle and a
tractor-trailer driven by a member of the National Guard under the jurisdiction
and employment of the Adjutant General of West Virginia. Sargis v. Adjutant General
(No. B-374) -- - 52
There is no moral obligation on the part of the State to compensate a person
who is injured on a public highway of the State. State Farm Mut. Auto. Ins. Co. v. State
Road Comm’n
(No. D-80) 180
Claimant insurance company was awarded the sum of $24.81, where it had been
subrogated to the rights of its insured, whose automobile was damaged when an
employee of the State Road Commission, patching holes in the surface of the
highway and chipping the concrete therein, caused a stone chip to strike the
windshield of the automobile, after the insured had been directed by a flagman
to pass the place of the work. State
Farm Mut. Auto. Ins. Co. v. State Road Comm’n (No. B-390). 55
Claimants were awarded the sum of $435 for damages caused when their parked
automobile was struck by a truck driven by an employee of the State Road
Commission. Shinn v. State
Road Comm’n (No. D-47) 162
In determining whether a driver of an automobile has driven safely, the lawful
speed limit may or may not be a factor in such determination. Weather is just
as important and cannot be dismissed without serious consideration. Stollings v.
State Road Comm’n (No. B-344) 56
A claim for damages sustained when claimant’s automobile swerved and slid on
the road surface, going round and round and finally over a hillside, was
disallowed, where the evidence was insufficient to show lack of proper
maintenance and did not support claimant’s contention that the road was not
safe for travel because it had become slick by reason of tar “bleeding.” Stollings V. State
Road Comm’n (No. B-344) 56
The State Road Commission’s failure to have road markers indicating a one-way
bridge does not constitute negligence.
Thompson V. State Road Comm’n (No. C-9) -
75
W. VA.]
REPORTS STATE COURT OF CLAIMS 261
The growth of weeds and brush along the
side of a road, not in the passageway of a road, does not constitute such
negligence on the part of the Road Commission as to render it responsible for
collisions on the road. Thorn pson v. State Road
Comm’n (No. C-9) 75
Pictures of a bridge and approaches introduced in the evidence clearly showed
that neither the bridge nor the road were out of repair and that the collision
in which claimant’s wife was killed would not have taken place had the parties
to the collision exercised reasonable and proper care under the circurnstances.
Thompson v. State Road
Comm’n (No. C-9) .... 75
Claimant was awarded the sum of $88.20 for damages sustained by his parked
truck when a State Road Commission grade-all drifted into the side of it. Williams V. State Road
Comm’n (No.. D-87) 241
MUNICIPAL CORPORATIONS
Claimant city was awarded $150, such
sum representing unpaid rent for hangar space used by the National Guard as
claimant’s municipal airport. City of
Morgantown v. State
Adjutant General (No. C-7) 79
The State has yielded its sovereignty in many areas where it has established
corporate municipalities, corporate organizations, and other institutions which
have the right to enact laws, levy taxes and fees, and otherwise act independently
of State control. City of Morgantown v. Board of
Governors of
West Virginia University (No. D-46)
174
The right to defend and escape liability by invoking the doctrine of immunity
because of the exercise of a governmental function by a city or county or by
West Virginia University does not in itself make such city, county, or
University an agency of the State. If that were the case, every legal action
against any city or other state incorporated body in which there is sustained a
governmental function plea of immunity from liability would come within the
jurisdiction of the Court of Claims under the agency theory. City of Morgantown v.
Board of Governors of West Virginia
University (No. D-46). 174
NATIONAL GUARD
Claimant city was awarded $150, such
sum representing unpaid rent for hangar space used by the National Guard at
claimant’s municipal airport. City of
Morgantown v. State
Adjutant General (No. C-7) 79
Claimants recovered $3,277.11 for personal injuries and damages to their
automobile arising out of a collision between their parked vehicle and a
tractor-trailer driven by a member of the National Guard under the jurisdiction
and employment of the Adjutant General of West Virginia. Sargis v. Adjutant
General (No. B-374) —- — — 52
262 REPORTS
STATE COURT OF CLAIMS IW.VA.
NEGLIGENCE — SEE also Blasting; Bridges; Damages; Fellow Servant;
Motor Vehicles; Physicians and Surgeolis; Rock Slides
Where the State Road Commission’s
negligont maintenance of a drain, coupled with the ovei flow of water unable to
pass through it, damaged claimant’s bottom land, and his allegations of damages
in the amount of $700 were unsubtantiated by the evidence, elanoant was awarded
the sum of $100 which he had expended for f rtilizcr, seed and labor in an effort
to recondition his land. I3caslezj v. State Road Co,nm’n (No.
C-21). 110
A claim for damages sustained when claimant’s truck overturned was disallowed,
where the evidence showed that claimant was negligent in allowing the wheels of
his vehicle to go off the paved portion of the road into the gully edge of the
ide berm when there was ample room in the paved portion
of the road. Fcderico v. Sawyers (No. C-20). 153
Claimant was awarded the sum of $16.48 for damage to his house caused when a
rock went through a picture window after being thrown from a rotary mower
operated by an employee of the State Road Commission. Gaoo v. State Road
Coiooi’o (No. D—7) .
82
A claim for damage to a dwelling house resulting from a flow of water over
claimant’s property after a heavy rainfall was disallowed, where the evidence
showed that such damage was due to the natural drainage uf the area and other
inter‘ cuing and superseding causes and was not directly attributable to the
neglect of the State Road Commission in keeping
its culvert open. Hammac’I v. State Road Coinot’n (No. D-83). 182
The honest exercise of the State Road Commissioner’s discretion in determining
at v hat points highway guard rails should be provided cannot be negligence. Harris
v. State Road Coocm’n
(No. D-76). 189
Where employees of the State Road Commission, during the course of cutting and
removing trees from the State right-of- way, cut a large tree and negligently
permitted it to fall upon claimants’ barn destroying approximately twelve feet
of the barn’s roof and breaking rafters therein, claimants were awarded $350 79
for damages to the barn and for the loss of fifty bales of hay which were
stored in the barn and which rotted due to being exposed to rain as a result of
the hole in the barn’s roof, Headers fzott v. State Road Comoc’ii (No.
B-395). 23
The State is not an insurer of its employees’ automobiles properly parked upon
State property and would not be liable for loss caused to such vehicles by
accidental fire, unless it failed to exercise ordinary care for the safety of
the property left in its keeping. Hott v. Department of Natural
Resources
(No. D-27) .
- - 106
Claimant was awarded the sum of $2,500 for damages which occurred when the
State Road Commission negligently created a landslide by adding rock in
excessive quantities to a roadbed, thereby producing an overburden and causing
the earth
W. VA.] REPORTS
STATE COURT OF CLAIMS 263
to give way, slip into, and destroy ciaimant’s building. Medley
V.
State Road Co?nmn (No. C-25).. 86
Claimant and her insurer were awarded a sum of $104.31 for damages sustained by
claimant’s automobile as a result of the act of employees of the State Road
Commission in negligently felling a tree on such vehicle. Nickell v. State
Road
Comm’n (No. D-4). 87
A claim for damages sustained when claimant’s automobile struck a rock on the
road was disallowed, where the evidence showed contributory negligence on the
part of the driver of
claimant’s car. Oliver v. State Road Comm’n (No. D-24). 144
A claim alleging negligence on the part of school officials resulting in the
death of a pupil was disallowed on the ground that such claim fell within the
statutory provision excluding claims against county boards of education, where
there were no allegations or proof that the State had any control or management
of the school property involved. See §
14-2-3,
W. Va. Code. Powers v. Board of Educ. (No. D-59). 242
Claimant was awarded the sum of $202.62 for damages sustained by her automobile
when tar splashed onto the painted surface of the vehicle as a result of
negligence on the part of State Road Commission employees. Robison v. State
Road
Commn (No. D-119). 229
A claim for injury and disfigurement due to the negligence of a physician and
hospital in treating claimant’s injured arm was disallowed, where there was no
direct evidence that the non-union of the claimant’s fracture was proximately
caused by the negligence of the hospital. Short v. Welch Emergency
Hosp. (No. B-375). 28
A claim for collision damages sustained when an automobile, the rights of whose
owner had been subrogated to claimant insurance company, was stolen by an
escaped prisoner was disallowed, where the fact that such prisoner, a trusty,
was able to obtain liquor and become intoxicated, prior to leaving a prison
chicken farm, was not sufficient to attribute negligence to the prison
officials, and any alleged failure on their part was not shown to be a
proximate cause of the prisoner’s acts. State Farm Mut. Auto. Ins. Co. v.
Department of Pub.
Institutions (No. D-55). - -- 146
The State Road Commission’s failure to have road markers indicating a one-way
bridge does not constitute negligence.
Thompson v. State Road Comm’n (No. C-9). 75
The growth of weeds and brush along the side of a road, not in the passageway
of a road, does not constitute such negligence on the part of the Road
Commission as to render it responsible for collisions on the road. Thompson v.
State Road
Comm’n (No. C-9). 75
OFFICE EQUIPMENT AND SUPPLIES
Claimant was awarded the sum of $94.94
for office supplies sold and delivered to the Department of Finance &
Administration. Columbia Ribbon & Carbon Mfg. Co. v. Department
of
Fin. & Admin. (No. D-82). 164
264 REPORTS STATE
COURT OF CLAIMS [W. VA.
Claimant was awarded the sum of $7,882.03 for equipment and services furnished
under contract to the Department of Finance and Administration. International Business Mach.
Corp. v. Department of Fin. & Admin. (No. D-42) 120
Claimant was awarded the sum of $1,026.54, representing the purchase price for
office equipment sold and delivered by claimant to the State Road Commission. Laird Office Equip.
Co. v. State Road Comm’n (No. C-b) 85
Claimant was awarded the sum of $13,245.47 as reimbursement for sums it had
advanced for the storage, handling, and hauling of office equipment as a result
of respondent’s failure to provide adequate facilities for the installation of
such equipment, which had been ordered by respondent and delivered by claimant
to locations specified in the purchase orders. Remington Rand Office Sys. Div. v. Department
of Welfare (No. D-43). 60
PHOTOGRAPHS
Where there was some conflict in the
evidence as to the color of material in the berm of the road at the place of an
accident which occurred on November 9, 1966, the testimony of a State’s witness
was corroborated by pictures of the road taken subsequently in January of 1967,
there having been little likelihood that any substantial change in the color of
the road and the
berm could have occurred. Federico v. Sawyers (No. C-20). 153
Pictures of a bridge and approaches introduced in the evidence clearly showed
that neither the bridge nor the road were out of repair and that the collision
in which claimant’s wife was killed would not have taken place had the parties
to the collision exercised reasonable and proper care under the circumstances. Thompson v. State Road Comm’n (No. C-9) 75
PHYSICIANS AND SURGEONS
A claim for damages alleged to have
resulted from negligent and unauthorized surgery performed at Fairmont
Emergency Hospital was denied, where evidence indicated the possibility of a
mix-up in the hospital records or in the identity of patients, where the
medical testimony was not sufficient to support the subjective symptoms and
complaints, and where the damages sought to be proved were highly speculative.
Blondheim v. Department
of Pub. Institutions (No. D-37) 170
Claimants, employees at Spencer State Hospital, were awarded a total amount of
$1,600 for “off-duty” professional services rendered in connection with a
follow-up program for the treatment of alcoholic patients after their discharge
from the hospital. Byrd v. Department
of Mental Health (No. D-35) 129
Claimant, who alleged that penitentiary officials willfully and negligently
failed and refused to provide him with adequate and proper medical treatment,
was not an expert capable of testifying as to what was or was not the proper
treat— ment in his case. Cephas v. Department
of Pub. Institutions
(No. D-57) — 149
A claim for injury and disfigurement due to the negligence of a physician and
hospital in treating claimant’s injured arm
W. VA.]
REPORTS STATE COURT OF CLAIMS 265
was disallowed, where there was no direct evidence that the non-union of the
claimant’s fracture was proximately caused by the negligence of the hospital. Short
v. Welch Emergency
Hosp. (No. B-375). 28
Claimant was awarded the sum of $24 for a medical consultation and hospital
visits furnished at the request of the Division of Vocational Rehabilitation of
the Department of
Education. Williams v. Department of Educ. (No. D-26) 103
PIPELINES
Claimant was awarded the sum of
$6,741.99 for labor and material used in replacing and up-grading its
pipelines, such work having been necessitated when the Department of Natural
Resources constructed a lake and submerged the immediate area with lake water. Eureka
Pipe Line Co. v. Department of Natural Resources (No. D-20)
100
Where claimant entered into a contract with the State Road Commission for
relocation of a gas pipeline and the evidence showed that a great many welds
were improperly rejected, that notices of acceptance or rejection were unduly
withheld, and that resultant delays were substantial and damaging to claimant,
it was held that claimant was entitled to damages in the amount of $28,535. Kenton
Meadows Co.
v. State Road Comm’n (No. B-331) 6
POISONS
Claimant, owner of a farm located on a
state highway, was awarded the sum of $225 for the loss of cattle by poisoning
from weed spraying along such highway by the State Road
Commission. Tenney v. State Road Comm’n (No. B-396). - 59
PRINTING
Claimant, whose charges for printing
5,000 books for the Department of Health remained unpaid merely because its
bill had not been presented until after the close of the fiscal year and funds
were then unavailable, was awarded payment of its claim in the sum of $4,400. Biggs-Johnston-Withrow
v.
Department of Health (No. B-393) 36
PRISONS AND PRISONERS—See also
Physicians and Surgeons
Claimant failed to carry the burden of
proof required to support his allegations that penitentiary officials willfully
and negligently failed and refused to provide him with adequate and proper
medical treatment, resulting in a permanent disability and inability to engage
in any gainful employment.
Cephas v. Department of Pub. Institutions (No. D-57) 149
Claimants were awarded a sum of $208.35 for damages sustained when four
convicts, who had escaped from a maximum security section at Hopemont
Sanitarium through the negligence of respondent’s employees, broke into
claimants’ home and stole several items of clothing and property. Lewis v.
Department of Pub. Institutions (No. D-73) 192
266
REPORTS STATE COURT OF CLAIMS [W. VA.
While the warden of the state penitentiary
is the lawful custodian of the convicts there confined, he is not personally
liable for a tort committed by a convict unless he directly participated in its
commission by a breach of duty. State
Farm Mut.
Auto Ins. Co. v. Department of Pub. Institutions (No.
D-55). 146
A
claim for collision damages sustained when
an automobile, the rights of
whose owner had been subrogated to
claimant insurance company, was stolen by an escaped prisoner was disallowed,
where the fact that such prisoner, a trusty, was able to obtain liouor and
become intoxicated, prior to leaving a prison chicken farm, was not sullicierit
to attribute negligence to the prison officials, and any alleged failure on
their pirt was not shown to be a proximate cause of the prisoner’s acts. St
ite Farm Mut. Auto. Ins. Co. v. Department of Pub.
Im.titutions
(No, D-55) - 146
Claimant was awarded the sum of $2,275.22
for building materials and supplies used in the construction of a new wall at
the State penitentiary. T & L-Wh.eeling
Plumbing & Indus.
Supply Co.
v. Department of Pub. Institutions (No,
D-70). 181
PUBLIC OFFICERS—See also Contracts
Claimant, whose trip to Europe for the purpose of
participating in a joint liquor administrators study conference had been
approved by the Governor but not by the Board of Public Works, as required by
the Board’s regulations, was awarded the sum of $803.79 as reimbursement for
travel and hotel expenses, where it was stipulated that the trip was undertaken
for and on behalf of the State and in conjunction with claimant’s official
duties and that claimant had acted in good faith in relying upon the Governor’s
approval and permission. El- more v. Alcoholic Beverage
Control Coinin’r (No. D-29). 97
Where the only apparent reason for the denial by the State of a claim for
electrical services and material furnished was a statutory provision
prohibiting the payment of claims incurred by State officers without any
legislative appropriation in the fiscal year for such payment, the Court
awarded claimant the sum of $3,801.73, stating that while it did not wish to
encourage or override the statutory provision, it was of the, opinion that the
fault was so chargeable to the State officers in employing such services that
the persons employed should not be denied fair and unjust enrichment by the
State in dealings which its
Road Com’n (No. C-13). . 80
While the Court of Claims looks with disfavor on state contracts which are not
authorized and executed according to statutory and budget requirements, it does
not approve of unfair and unjust enrichment by the state in dealings which its
officers have made in taking property and labor of others in projects in which
the State has benefited. Greene v. State Road
Comm’n (No. D-32). . 155
The authority of a public officer to enter into contracts is defined by law and
the Legislature may not authorize the payment of a claim created against the
State under any contract made without express authority of law, See art. VI. § 38, W. Va.
Const, Mountain State Consultants, Inc.
v. State (No.
D-l00) 213
W. VA.] REPORTS
STATE COURT OF CLAIMS 267
Parties contracting with the State or any of its agencies do so at their peril,
and must inquire into the legal powers of State representatives to incur
liability on behalf of the State. Mono— tom State Consuttaots,
Inc. v. State (No. D—lOO) . 213
Claimant, who entered into road-building contract with the State Road
Commission, was chargeable with knowledge that it was dealing with a
governmental agency, with eniployees and agents whose duties were defined by
law an(l WtiO had limited powers to contract (ni cost items not clearly macIc a
part of the contract. NeLto
L. leer ( ‘o. State Road (o tic
(No. D-89). 216
The rules and regulations governing West Virginia personnel, as issued by the
Board of Public Works in the paragraph relating t0 annual leave, provide that
annual leave regulation: shall not apply to elected or appointed State
ofhcnils.
Parrish v State A c’roii autic.s
(‘o ncnc’ii (No C— 18). 89
A claim by the executive director of the State Aeronautics Commission for
accrued annual leave was disallowed on the ground that claimant was an
appointive oflicer and not such a State employee as was entitled to leave pay
under the provis-ions of the rules and regulations of the Board of Public Works
of West Vi rgiriia. l’a rrcslc ‘. Stale Aeronautics Co?ni,t’n
(No.
C-18). 89
A citizen, relying upon the ability of and confidence in a public oflicial and
expending large sums of money to comply with a purported contract, should not
in good conscience be deprived of his property, especially where the State has
had full value in the matter. Rahall
Realty Co. v. Department of
Welfare (No. D-90). 225
Claimant was awarded the sum of $40,500 as compensation for unpaid rent on a
building leased by claimant to the State for the use of the Department of
Welfare, where State officers were unable to compel a county court to provide
its share of the funds to pay the rentals as contemplated under the contract. Rahall Realty Co.
v. Department of Welfare (No. D-90). 225
The acts of a public officer improperly performed may be ratified and
validated. W. A. Abbitt Co. v. Department
of Welfare (Nos. C-37, C-36, C-38,
C-39, C-40, C-41, C-42, C-43). 62
Claimant’s building renovation contract with the Commissinner of the Department
of Welfare was valid, notwithstanding the fact that -uch contract had not been
approved by the Attorney General as required by statute, where the evidence
clearly established ratification of the Commissioner’s acts, the State having
accepted the benefits of the work done and materials furnished, and there
having been no dispute as to the amount of work done and materials furnished,
the quality of materials or workmanship, or the amount of the aggregate claim.
See 5-3-l5, W. Va. Code. W. A. Abbitt Co. v Deportment
of Welfare (Nos. C-37, C-36, C-38,
C-39, C-40, C-41, C-42, C-43). - . - . . - . 62
RAILROADS
Claimant railroad was awarded the sum
of $212.01 for damages resulting from the overturning of its coal car when
blast-
268 - REPORTS STATE COURT OF CLAIMS [W. VA.
ing was done by employees of the State Road Commission.
Chesapeake & 0. Ry. v. State Road
Comm’n (No. D-86) 173
ROCK SLIDES
Claimant was awarded the sum of $73.24
for damages to his automobile occasioned by a rock fall from a mountain, where
evidence showed that there was no flagman or sign on the road to warn traffic
of any damage while workers were clearing the mountainside. Chapman v. State Road Comm’n (No.
D-78) —
163
Claimant was awarded the sum of $247.07 for damages to her automobile caused by
a rock slide, where the evidence disclosed that no signs had been erected along
the highway to caution motorists to beware of falling rock and that no effort
had been made by the State Road Commission to remove remaining debris and rock
from the hillside. Chat field v. State
Road Comm’n (No. D-33) 117
Claimant was awarded the sum of $2,500 for damages which occurred when the
State Road Commission negligently created a landslide by adding rock in
excessive quantities to a roadbed, thereby producing an overburden and causing
the earth to give way, slip into and destroy claimant’s building. Medley
v. State Road Comin’n (No. C-25)
86
Claimant insurance company’s claim for damages sustained when its insured’s
automobile struck rocks and boulders in the road was disallowed, where there
was insufficient evidence to establish any negligence on the part of the State
Road Commission. State Farm Mut. Auto. Ins. Co. v. State
Road
Comm’n (No. B-381) 54
An unexplained falling of a rock down a hillside does not satisfy the
requirement of proof that th rock fell because of the failure of the road crew
to exercise reasonable care in its work area, or as the result of conditions
which the State Road Commission was instrumental in creating or maintaining. A
negligent or wrongful act should be alleged. State Farm Mut.
Auto. Ins. Co. v. State Road Comm’n (No. D-80) 180
Claimant was awarded the sum of $181.08 for damages to
his automobile caused by a rock falling from a cliff alongside
a newly constructed by-pass or cut-off road adjacent to a
State highway. Vincent v. State
Road Comm’n (No. D-127). 240
SALARIES—See Wages
SCHOOLS
A claim alleging negligence on the
part of school officials resulting in the death of a pupil was disallowed on
the ground that such claim fell within the statutory provision excluding claims
against county boards of education, where there were no allegations or proof
that the State had any control or management of the school property involved. § 14-2-3, W. Va.
Code. Powers v. Board of
Educ. (No. D-59) 242
W. VA.]
REPORTS STATE COURT OF CLAIMS 269
SECURITIES
The Court of Claims is not to be
substituted for courts which have jurisdiction to hear an appeal from, and if
necessary overrule, a decision of the commissioner of securities. McCoy
v. Secretary of State (No. D-54) 159
A claim for a refund of fees paid by claimant in connection with the
incorporation and subsequent dissolution of a corporation organized by him was
disallowed, where liability on the claim had been totally denied by respondents
on the basis that the fees paid were not refundable under the statute and were
not collected upon the contingency of the claimant’s success in obtaining a
permit to sell the shares of the capital stock of the corporation or upon any
other contingency. See § 32-1-6,
W. Va. Code. McCoy v. Secretary of State (No. D-54) 159
STATE—See also Contracts
The State has yielded its sovereignty
in many areas where it has established corporate municipalities, corporate
organizations, and other institutions which have the right to enact laws, levy
taxes and fees, and otherwise act independently of State control. City of
Morgantown v. Board of Governors of
West Virginia University (No. D-46) 174
Statutory definition of “State agency” clearly limits such an agency to one
which is in the true sense an officer or servant of its master, the State, and
not one which acts as an independent principal. See § 14-2-3, W.
Va. Code. City of Morgan- town v. Board of Governors of West Virginia
University (No.
D-46). 174
Airport authorities, which are separate creatures of the State, with grants of
power from the State, are not “agents” of the State. City of Morgantown v.
Board of Governors of
West Virginia University (No. D-46) 174
The Board of Governors of West Virginia University, which functions entirely
separately and independently of any control by the State, is not truly an
administrative state agency for whose liabilities the Court of Claims should
determine whether in equity and good conscience the State should pay. City
of Morgantown v. Board of Governors of West Virginia
University (No. D-46) 174
The State is not an insurer of the safety of the roads and highways.
Harris v. State Road Comm’n (No. D-76) 189
State Farm Mut. Auto. Ins. Co. v. State Road Comm’n (No.
D-80) 180
The construction and maintenance of public highways is a governmental function.
Harris v. State Road Comm’n (No.
D-76) 189
The State is not an insurer of its employees’ automobiles properly parked upon
State property and would not be liable for loss caused to such vehicles by
accidental fire, unless it
270
REPORTS STATE COURT OF CLAIMS .W. VA.
failed to exercise ordinary care for the safety of the property left in its
keeping. Hott v. Department of Natural
Resources
(No. D-27). - 106
STREETS AND HIGHWAYS—See also
Blasting; Bridges; Drains; Eminent Domain; Livestock; Motor
Vehicles; Negligence; Rock Slides;
Trespass; Tunnels
Claimant was awarded the sum of
$12,000 for extra work and losses sustained in the
removal and subsequent replacement of a considerable length of roadbed due to a
grading error on the part of the State Road Commission, adPitional compensation
for an over-run in gravel in the amount of $18,000, and
additional compensation for extra work and additional costs incurred due to
delays occasioned by procedural changes through no fault of the claimant in the
amount of $9,775, Buckeye Uoiou
Cas. Co. v. State Road
Comni’n
(No. B-280). 17
A claim for compensation for work involved in the application of hot laid
asphalt concrete to an experimental coure was disallowed, where it was
difficult, if not impossible, to determine with any degree of accuracy the
correct amount of time involved in start-up and clean-up time, and such matter
was properly a subject for adjustment. Central
Asphalt paving and Concrete Construction Co. v. State Road Comm’n
(No. B-298). 38
Claimant was awarded the sum of $16,483.75 for extra labor, materials, and
additional engineering performed and supplied to the State Road Commission
pursuant to an interstate highway construction contract. Central Asphalt Paving Co. V.
State Road Comm’n (No. C-27). 112
Claimant was awarded the sum of $10,600 for extra labor and materials required
to complete an interstate highway construction project. Central Asphalt Paving Co. v. State Road
Comn’n (No. C-28). 115
A claim for additional expense in obtaining special rock fill was disallowed,
where the evidence did not support claimants’ contention that they were misled
or deceived by the Stste Road Commission’s specifications upon which claimants
made their bid on an expressway project. Central
Asphalt Paving and Concrete Construction Co. v. State Road Comm’n (No. C-29).
Claimant was awarded the sum of $5,506.55 for emergency flood clean-up work
performed over and above the work and labor contemplated under his highway
construction contract with the State Road Commission. C. E. Wet herall v. State
Road Comm’n (No. C-24). . ... .. 133
Where claimant’s work on an interstate highway construction contract was not
unreasonably delayed by a shutdown order, claimant was entitled to reasonable
compensation for any damages resulting from the improper issuance of the order,
but only for such damages as were the direct and proximate consequence thereof;
and such damages included a claim for moving stockpiles, for the cost of sand
wasted because of rehandling, and for show-up time paid for men during
W. VA.] REPORTS STATE COURT OF CLAIMS 271
the delay, but did not include a claim for
equipment rental loss sustained during the shutdown. Charleston Constr., Inc. v.
State Road Coinm’n (No. D-105.) - 205
The berm of a road is not a travel section, and the maintenance of it is
primarily for the protection of the paved portion of a road and not for travel.
Federico v. Sawyers (No.
C-20). 153
The construction and maintenance of public
highways is a governmental function. Harris
v. State Road Comm’n (No.
D-76) -
189
The State is not an insurer of the safety of the roads and highways.
Harris v. Spite Road
Comm’n (No. D-76). 189
State Farm Mut. Auto. Ins. Co. v. State
Road Comm’n (No.
D-80) --
180
Public funds entrusted for road purposes must be expended in the discretion of
the Road Commissioner, and at what points guard rails should be provided is a
matter of discretion for the State Road Commissioner Harris v. State Road Comm’n (No.
D-76). -
-- 189
The honest exercise of the State Road Commissioner’s discretion in determining
at what points highway guard rails should be provided cannot be negligence. Harris v. State Road
Comm’n (No. D-76). - -- 189
The failure of the State Road Commission to provide highway guard rails does
not create a moral obligation on the part of the State to compensate a person
for injuries assumed to have occurred through such failure. Harris v. State Road
Comm’n (No. D-76). -- 189
Claimant was awarded the sum of $144,349.53, which included damages for delay
occasioned by the State Road Commission in connection with a paving contract,
for an increased expenditure for cement resulting from the delay, and for
additional stockpile rental. Haynes
Constr. Co. v. State Road
Comm’n (No. C-16). 165
Claimant recovered the sum of $125.73 for damages to his automobile which
occurred when the vehicle dropped into a hole in the road and hit a washed-out
manhole cover, not readily visible, impaling the car and causing it to come to
an abrupt and violent stop, damaging the frame and other parts.
Neeley v. State Road
Comm’n (No. B-388) .. - 45
Claimant, who entered into a road-building contract with the State Road
Commission, was chargeable with knowledge that it was dealing with a
governmental agency, with employees and agents whose duties were defined by law
and who had limited powers to contract for cost items not clearly made a part
of the contract. Nello L. Teer Co. v. State Road Comm’n
(No. D-89). - 216
A claim for seeding and mulching in areas extending beyond the right-of-way of
a road construction project was disallowed, where a reasonable interpretation
of the contract led
272 REPORTS STATE
COURT OF CLAIMS [W. VA.
to the conclusion that additional seeding and mulching resulted by the
contractor’s actions in unnecessarily using surplus waste material for widening
the embankments or shoulders of the road should not be a compensable item. Nello L. Teer
Co. v. State Road Comm’n (No. D-89). -
-- - 216
The lack of written change orders or supplemental agreements in writing in
which the State Road Commission agreed to recognize and pay for claims in
connection with a highway comtruction contract was a material, if not fatal,
defect in the
proof. Oscar Vecellio, Inc. v. State (No. B-339). - 47
Claimant was awarded, after completion of an interstate highway contract, the
sum of $17,583.06 for rock undercut in the median, for Portland cement concrete
pavement, and for borrow excavation. S. J.
Groves & Sons v. State Road Comm’n
(No. D-91) 230
Claimant recovered the sum of $3,099.67 for labor performed and equipment used
on an interstate highway construction contract prior to receipt of an order to
cease all operations because of the failure of the base course materials to
meet specifications. Southern Coals
Corp. v. State Road Comm’n
(No. B-366) 2
Claimant was awarded the sum of $5,401.31 for labor and equipment required to
remove and replace stockpiled aggregate from paving mix and for other items of
overhead resulting from an ensuing delay in the performance of a paving
contract. Southern Coals Corp. v. State Road
Comm’n (No.
D-21) 122
Claimant was awarded the sum of $87,823.61 for costs resulting from a large
overrun of bituminous treated aggregate base course and bituminous material due
to a combination of circumstances which were or should have been within the
control of the State Road Commission. State
Constr., Inc. v.
State Road Comm’n (No. D-115) 236
Claimant insurance company was awarded the sum of $24.81, where it had been
subrogated to the rights of its insured, whose automobile was damaged when an
employee of the State Road Commission, patching holes in the surface of the
highway and chipping the concrete therein, caused a stone chip to strike the
windshield of the automobile, after the insured had been directed by a flagman
to pass the place of the work. State
Farm Mut. Auto. Ins. Co. v. State Road Comm’n
(No. B-390) 55
There is no moral obligation on the part of the State to compensate a person
who is injured on a public highway of the State. State Farm Mut. Auto. Ins. Co. v. State Road
Comm’n (No. D-80) 180
The State does not, and cannot, assure a traveler a safe journey in a
mountainous country, where many roads are narrow, with steep grades and sharp
curves. State Farm Mut.
Auto. Ins. Co. v. State Road Comm’n (No. D-80) 180
A claim for damages sustained when claimant’s automobile swerved and slid on
the road surface, going round and round and finally over a hillside, was
disallowed, where the evidence
W. VA.] REPORTS STATE COURT OF CLAIMS 273
was insufficient to show lack of proper maintenance and did not support
claimant’s contention that the road was not safe for travel because it had
become slick by reason of tar “bleeding.” Stollings v. State Road
Comm’n (No. B-344) 56
The State Road Commission’s failure to have road markers indicating a one-way
bridge does not constitute negligence.
Thompson v. State Road Comm’n (No. C-9) 75
The growth of weeds and brush along the side of a road, not in the passageway
of a road, does not constitute such negligence on the part of the Road
Commission as to render it responsible for collisions on the road. Thompson v.
State Road
Comm’n (No. C-9) 75
Pictures of a bridge and approaches introduced in the evidence clearly showed
that neither the bridge nor the road were out of repair and that the collision
in which claimant’s wife was killed would not have taken place had the parties
to the collision exercised reasonable and proper care under
the circumstances. Thompson v. State Road Comm’n (No. C-9). 75
A claim for damages to a residence, alleged to have been caused by shock and
vibrations from the movement of heavy trucks over a nearby concrete highway,
was disallowed, where the evidence did not sufficiently connect the
deterioration of claimant’s residence with any negligent act or failure to act
on the part of the State Road Commission. Webb v. State
Road Comm’n (No. C-22) 92
SUBROGATION
Claimant insurance company was awarded
the sum of $24.81, where it had been subrogated to the rights of its insured,
whose automobile was damaged when an employee of the State Road Commission,
patching holes in the surface of the highway and chipping the concrete therein,
caused a stone chip to strike the windshield of the automobile, after the
insured had been directed by a flagman to pass the place of the work. State
Farm Mut. Auto. Ins. Co. v. State Road Comm’n (No.
B-390) 55
TAXATION
A claim for a refund for overpayment
of business and occupation taxes was disallowed, where such claim had not been
filed within the period of three years provided in § 11-1-2,
W. Va. Code. Swisher v. State Tax Comm’r (No. C-il) 73
TORTS
Claimant, who alleged that the State
Road Commission had appropriated and converted to its own use pipe which
claimant had supplied to a highway contractor, had the right to waive the tort
and to sue on a contract implied by the facts within the five-year statute of
limitations. Armco Steel Corp.
v. State Road Comm’n (No. D-30) - 33
274 REPORTS
STATE COURT OF CLAIMS [W. VA.
TRESPASS
Where claimant sought $1,000 for
damage resulting from the passage of a State bulldozer over his leased
premises, allegedly destroying three rows of strawberry plants and “covering
up” a “setting” hen and her eggs, but claimant declined, or was unable, to even
state the cost of his strawberry plants or his hen, the Court exercised its
statutory investigative powers to arrive at some reasonable value for these
items and awarded him the sum of $25. A
hers v. State Road Comm’n
(No. D-65). - 127
Claimants were awarded the sum of $2,106.71 for damage to their house and
automobile, where the sole cause of the damage was the defective condition of
the brakes on a State Road Commission truck which left the roadway and struck
claimants’ house and automobile. Curry v. State Road Comm’n
(No. C-2) -- 105
Where employees of the State Road Commission, during the course of cutting and
removing trees from the State right-of- way, cut a large tree and negligently
permitted it to fall upon claimants’ barn destroying approximately twelve feet
of the barn’s roof and breaking rafters therein, claimants were awarded $350.79
for damages to the barn and for the loss of fifty bales of hay which were
stored in the barn and which rotted due to being exposed to rain as a result of
the hole in
the barn roof. Hendershott v. State Road
Comm’n (No. B-395). 23
Claimant recovered the sum of $75 for inconvenience caused her when the State
Road Commission, while regrading a road within its right-of-way, damaged
claimant’s fence, and destroyed the first two or three blocks of the steps to
her property. Hurley v. State Road
Comm’n (No. B-377) 44
Claimants were awarded the sum of $75 for vines and a tree which were
wrongfully cut down and removed from their property by employees of the State
Road Commission. Kucera
v. State Road Comm’n (No.
D-38) 179
A claim for damages to a residence, alleged to have been caused by shock and
vibrations from the movement of heavy trucks over a nearby concrete highway,
was disallowed, where the evidence did not sufficiently connect the
deterioration of claimant’s residence with any negligent act or failure to act
on the part of the State Road Commission. Webb v. State Road
Comm’n (No. C-22) .. 92
TUNNELS
Claimant was awarded a sum of
$269,116.08 as compensation for losses sustained and additional expense
incurred in tunnel concreting operations, for winterizing expenses, for back-
filling expenses incurred by reason of the failure of excavated materials to
meet respondent’s representations, and for additional cement required by reason
of a formula change. C. J.
Langenfelder & Son, Inc. v. State (Nos.
B-292, B-292(b)) 69
WAGES
Claimant was awarded the sum of
$177.42 for services performed in connection with a summer work program for the
W. VA.i REPORTS
STATE COURT OF CLAIMS 275
Department of Mental Health. DeBolt v. Department of
Mental Health (No. D-85). 164
Claimant was awarded the sum of $272.14 as reimbursement for travel expenses
incurred in the course of his employment.
Jordan v. Department of Educ. (No. D-143). 228
Claimants were awarded compensation for loss of wages during a period of
suspension from their employment by the State Road Commission, where they had
been exonerated of the charges made against them arid reinstated to their
employ-
vent. Owens v. State Road Comm’n (No. D-134). 223
Claimart was awarded the sum of $316.08 for expenses incurred while driving hi.
private automobile in the performance of his auties as a district sign foreman
of the State Road
Commission. Southern v. State Road Comm’n (No. D-141). 235
Claimant was awarded the sum of $512.91 for air transportation furnished
employees of the Department of Finance and Administration while such employees
were on official business for the State. United Air Lines, Inc. v. Department
of Fin. &
Acimin. (No. D-61). -
167
WELLS
A claim for additional work and labor
performed and materials furnished pursuant to a well-drilling contract with the
State Road Commission was properly considered by the Court of Claims, where
such claim had been pending before the Attorney General at the time of the
creation of the Court.
Warner v. State Road Cornm’n (No. B-91). 24
WEST VIRGINIA UNIVERSITY
The Board of Governors of West
Virginia University, which functions entirely separately and independently of
any control by the State, is not truly an administrative state agency for whose
liabilities the Court of Claims should determine whether in equity and good
conscience the State should pay. City of Morgantown v. Board of
Governors of West Virginia Univer sit (No. D-46) . -. 174
The right to defend and escape liability by invoking the doctrine of immunity
because of the exercise of a governmental function by a city or county or by
West Virginia University does not of itself make such city, county, or
University an agency of the State. If that were the case, every legal action
against any city or other state incorporated body in which there is sustained a
governmental fupction plea of immunity from liability would come within the jurisdiction
of the Court of Claims under the agency theory. City of Morgantown v.
Board of Governors of West Virginia University (No. D-46). 174
WITNESSES
Claimant, who alleged that
penitentiary officials willfully and negligently failed and refused to provide
him with adequate and proper medical treatment, was not an expert capable of
testifying as to what was or was not the proper treat-
276 REPORTS STATE
COURT OF CLAIMS [W. VA.
ment in his case. Cepluis v. Department of Pub. Institutions
(No. D-57) 149
Where there was some conflict in the evidence as to the color of material in
the berm of the road at the place of an accident which occurred on November 9,
1966, the testimony of a State’s witness was corroborated by pictures of the
road taken subsequently in January of 1967, there having been little likelihood
that any substantial change in the color of the road and the berm could have
occurred. Federico v. Sawyers
(No. C-20) 153
WORKMEN’S COMPENSATION
All of the powers, duties, and
responsibilities of the Workmen’s Compensation Commissioner are statutory. Mountain
State Consultants, Inc. v. State (No. D-100) 213
Among the powers delegated to the Workmen’s Compensation Commissioner are the
right to employ a secretary, actuary, accountants, inspectors, examiners,
experts, clerks, stenographers and other assistants, and fix their
compensation. See § 23-1-6, W. Va. Code. Mountain State Consultants,
Inc. v.
State (No. D-100) 213
The Workmen’s Compensation Commissioner had no statutory power to engage an
independent consultant who was not an employee of the State, and the use of a
corporate entity to shield the reemployment of a former employee after he had
reached the mandatory retirement age was in violation of the Compulsory
Retirement Age Act. See former § 5-14-1 to 5-14-5, W. Va. Code. Mountain State
Consultants, Inc. v. State
(No. D-100) 213
The opinion of the City of Morgantown v. The Board of Governors of
West Virginia University (Claim No. D-46) was subsequently remanded to the
Court of Claims by the West Virginia Supreme Court of Appeals on the ground
that the University is an agency of the State. The Court of Claims then issued
an opinion allowing this claim.